Administrative Permission Law
The Administrative Licensing Law is a law formulated according to the Constitution to regulate the establishment and implementation of administrative licensing, protect the legitimate rights and interests of citizens, legal persons and other organizations, safeguard public interests and social order, and ensure and supervise the effective implementation of administrative management by administrative organs.
administrative law
(A) the concept, characteristics and classification of administrative law
1. The concept of administrative law
The so-called administrative law refers to the various relationships between the administrative subject and the administrative counterpart, the administrative legal supervision subject in the process of exercising administrative functions and accepting administrative legal supervision, as well as the legal norms of various relationships within the administrative subject. It consists of administrative organization law, administrative behavior law, administrative procedure law, administrative supervision law and administrative relief law. A certain focus is to control and standardize administrative power and protect the legitimate rights and interests of administrative counterparts.
As the object of administrative law adjustment, administrative relations mainly include four categories: (1) administrative relations. That is, administrative organs, organizations authorized by laws and regulations and other administrative subjects have various relationships with citizens, legal persons and other organizations and other administrative counterparts in the process of exercising administrative functions and powers. The administrative relationship between administrative subject and administrative counterpart is the subject of administrative relationship. A large number of administrative actions of administrative subjects, such as administrative licensing, administrative expropriation, administrative payment, administrative ruling, administrative punishment, administrative coercion, etc. Most of them are implemented with the administrative counterpart as the object, thus generating administrative relations with the administrative counterpart. (2) the relationship between administrative and legal supervision. That is, the various relationships that occur when the subject of administrative legal supervision supervises the administrative subject and its public servants. The so-called subject of administrative legal supervision refers to state power organs, state judicial organs and administrative supervision organs. According to the authorization of the Constitution and laws, it conducts legal supervision over the exercisers of administrative power and their administrative actions. (3) Administrative relief relationship. That is, the administrative counterpart thinks that his legitimate rights and interests have been infringed by the administrative act made by the administrative subject, and applies for relief from the administrative relief subject, which examines his application and makes a decision whether to provide relief to the counterpart or not. The so-called subject of administrative relief refers to the state organs authorized by law to accept complaints, accusations, exposures, administrative reconsideration and administrative litigation of administrative counterparts. It mainly includes the petition organs that accept complaints, accusations and exposures, the administrative reconsideration organs that accept administrative reconsideration, and the people's courts that accept administrative litigation. (4) Internal administrative relations. That is, all kinds of relationships within the administrative subject, including the relationship between higher and lower administrative organs, the relationship between parallel administrative organs, the relationship between administrative organs and their internal institutions and dispatched institutions, the relationship between administrative organs and national civil servants, and the relationship between administrative organs and the law; The relationship between organizations authorized by laws and regulations, the relationship between administrative organs and organizations entrusted to exercise certain administrative functions and powers, and so on. Among the above four administrative relations, the administrative relationship is the most basic one. The administrative legal supervision relationship and the administrative relief relationship are derived from the administrative relationship, while the internal administrative relationship is subordinate to the administrative relationship and is a unilateral internal relationship between one party and the administrative subject.
2. Characteristics of administrative law
(1) There is no unified and complete entity administrative code in administrative law. This is because administrative law involves a wide range of social fields, with various contents and complicated administrative relations, and it is difficult to formulate a comprehensive and complete unified code. Administrative law is scattered in various laws, administrative regulations, local regulations, rules and other normative documents of different levels, names and categories. All normative documents involving administrative power have administrative law norms. Important comprehensive administrative laws at home and abroad mainly include: administrative organization law, national civil servant law, administrative punishment law, administrative compulsory law, administrative licensing law, administrative litigation law, administrative openness law, administrative reconsideration law, administrative litigation law and state compensation law.
(2) Administrative law covers a wide range of fields and is rich in content: due to the rapid expansion of modern administrative power, its activities are not limited to diplomatic fields such as national defense, public security, taxation, etc., but extended to all aspects of social life. Therefore, this determines that social relations in all fields need to be adjusted by administrative law, and modern administrative law is applicable to a wider range and richer in content.
(3) Administrative law is highly variable.
Because the relationship between social life and administration and other departmental laws is complex and changeable, the administrative legal norms as the regulator of administrative relations are also highly variable and need to be abolished, changed and formulated frequently.
3. Classification of administrative law
(1) Based on the function of administrative law, administrative regulations can be divided into the following three categories: ① legal norms about administrative organizations. This norm can be divided into two parts: one part is the legal norm about the establishment, establishment, authority, responsibility, activity procedures and methods of administrative organs, in which the authority and responsibility norms are the core of the administrative organization law norms; The second part is about the legal norms of the relationship between the rights (functions and powers) and obligations (responsibilities) of state administrative organs and state civil servants in employment, training, assessment, rewards and punishments, promotion and transfer. (2) the legal norms of administrative behavior, the most important of which is the legal norms of the relationship between the rights (powers) and obligations (responsibilities) of administrative organs and administrative counterparts. This kind of specification has the largest number and the widest coverage. (3) The legal norms of supervising administrative power, that is, the legal norms of supervising subjects supervising administrative power, mainly include administrative supervision, administrative audit, administrative reconsideration, administrative litigation, administrative compensation and other legal norms. Although the number of such norms is not the largest, they are very important and one of the key points of the administrative legal system.
(2) Administrative law can be divided into general administrative law and departmental administrative law according to the scope of its adjustment object. General administrative law is the general name of the basic principles of administrative law, administrative organization law, national civil servant law, administrative behavior law, administrative procedure law, administrative supervision law, administrative relief law and other legal norms to adjust and supervise general administrative relations. The administrative relationship and supervision administrative relationship adjusted by general administrative law have a wide range and coverage, which must be observed by all administrative subjects. Departmental administrative law is the general name of legal norms to adjust the administrative relationship between departments, such as economic administrative law, military administrative law, educational administrative law, public security administrative law, civil administrative law, health administrative law and so on. In administrative law, people usually study general administrative law in the general theory of administrative law and departmental administrative law in the sub-theory of administrative law.
The manifestations of administrative law in China mainly include:
1.
Constitution is the fundamental law of the country, which has the highest legal effect and is the basis of all kinds of legislation. The provisions of the constitution on the acquisition, exercise and supervision of administrative power have laid the foundation of administrative law, so the constitution is the fundamental embodiment of administrative law. The administrative law norms stipulated in the Constitution mainly include: (1) the source of state administrative power and the basic principles of exercising power; (2) the legal status and management system of administrative organs in state institutions; (three) the establishment, authority and responsibility of the administrative organ; (4) Provisions on citizens' basic rights and their protection.
2. Law
Law refers to the basic laws and laws formulated by the National People's Congress and its Standing Committee. The legal norms concerning the acquisition, exercise and supervision of administrative power are all administrative legal norms. Law is the most important manifestation of administrative law. (1) Law on the establishment of administrative power and the scope of authority. Such as the Organic Law of the State Council, the Organic Law of local people's congresses and local people's governments at all levels (hereinafter referred to as the Local Organic Law). (2) Laws on the exercise and application of administrative power. Such as administrative punishment law, regulations on administrative penalties for public security, tax collection and management law, etc. (3) laws to supervise the exercise of administrative power and remedy the infringed. Such as administrative supervision law, audit law, administrative reconsideration law, administrative procedure law, state compensation law, etc.
3. Administrative regulations
Administrative regulations refer to various political, economic, educational, scientific and technological, cultural and foreign affairs regulations formulated by the State Council in order to lead and manage various administrative work of the country in accordance with the Constitution and laws and in accordance with the procedures prescribed by administrative regulations. Because the provisions of the law on administrative power are often principled and abstract, it needs further concretization by administrative organs. Administrative regulations are the main form of concretization of legal content.
4. Local regulations
Local regulations refer to normative documents formulated and promulgated by local people's congresses and their standing committees of provinces, autonomous regions, municipalities directly under the Central Government and larger cities according to local actual needs, provided that they do not violate the Constitution, laws and administrative regulations.
5. Regulations on national autonomy and separate regulations
Regulations on ethnic autonomy and separate regulations refer to the normative documents formulated by the people's congresses of ethnic autonomous areas in accordance with the authority stipulated by the Constitution, the Law on Regional Ethnic Autonomy and other laws, combined with the political, economic and cultural characteristics of local ethnic groups. It is also a manifestation of administrative law to stipulate autonomous regulations and separate regulations with administrative law norms.
6. Administrative regulations
Administrative rules are divided into departmental rules and local rules. Departmental regulations refer to the general name of normative documents formulated by various departments in the State Council and directly affiliated institutions with administrative functions within the scope of their functions and powers in accordance with laws and administrative regulations, decisions and orders of the State Council. Local regulations refer to the general name of normative documents formulated by the people's governments of provinces, autonomous regions, municipalities directly under the Central Government and larger cities according to laws, administrative regulations and local regulations, which are generally applicable to the administrative work in the region. Administrative regulations are an important basis for administrative activities, and their number, scope of application and frequency of use rank first among all forms of administrative law.
7. Other forms of administrative law
In addition to the above six forms of administrative law, international treaties, legal interpretations and normative documents such as administrative regulations and rules jointly issued by administrative organs, political parties and mass organizations are also forms of administrative law.
(C) the status and role of administrative law
Administrative law, like criminal law and civil law, is one of the three basic legal departments in the modern legal system and plays an extremely important role in China's socialist legal system. The role of administrative law can be summarized in the following three aspects:
1. Maintain social order and public interests
With the continuous development of modern social economy and culture, there are more and more social problems, which require administrative organs to perform various duties such as developing economy, stabilizing society, protecting environment, controlling population and strengthening public security. Therefore, administrative organs must effectively regulate and restrain the behavior of administrative counterparts through administrative legislation, administrative law enforcement and administrative justice, stop illegal acts that endanger the interests of others and public interests, establish and maintain social order and administrative order, and ensure that administrative organs fully and effectively implement administrative management.
2. Supervise the administrative subject to prevent the infringement and abuse of administrative power.
Because administrative power is corrupt, expansive and unequal to individual rights, it must be supervised and restricted. Among all kinds of supervision methods, the most effective and direct supervision method is administrative supervision. Administrative law can effectively supervise the administrative subject and prevent the violation or abuse of administrative power by stipulating the scope, exercise mode and legal responsibility of administrative power.
3. Protect the legitimate rights and interests of citizens, legal persons or other organizations.
Administrative law protects the legitimate rights and interests of citizens, legal persons or other organizations, which mainly includes two aspects: first, it guarantees the realization of their political, economic and social rights by giving citizens, legal persons or other organizations legal authority and supervising their exercise; The second is to give citizens, legal persons or other organizations the right to supervise their actions (such as the right to report and accuse) and the right to participate in the exercise of administrative power (such as the right to know and the right to request a hearing), especially for them.
(four) the basic principles of administrative law
The basic principles of administrative law are the essence of administrative law, which runs through administrative legislation, administrative law enforcement, administrative justice and administrative legal supervision. It is the basic principle guiding the formulation, revision, abolition and implementation of administrative law.
Regarding the basic principles of administrative law, scholars of administrative law at home and abroad have made different generalizations and induction from different angles. According to the development of China's administrative law, we believe that the following two basic principles of administrative law should be particularly emphasized:
1. The principle of administration according to law
The principle of administration according to law means that administrative organs must exercise administrative power according to law. This principle can be divided into four sub-principles: (1) principle of legal priority. It means that the legal status is higher than administrative regulations, administrative rules and administrative orders, and all administrative regulations, administrative rules and administrative orders shall not contravene the law. (2) The principle of legal reservation. It means that the matters stipulated in Article 8 of the Legislative Law can only be stipulated by law. It can also be divided into absolute reservation and relative reservation. The former, such as crimes and penalties, deprivation of citizens' political rights, compulsory measures and penalties that restrict citizens' personal freedom, and judicial system, must be prescribed by law, and administrative organs may not be authorized to make provisions; For other matters as stipulated in Article 8 of the Legislative Law, the National People's Congress and its Standing Committee may authorize the State Council to formulate administrative regulations in advance. (3) The principle of statutory authority. Refers to the acquisition and exercise of any functions and powers of administrative organs, which must comply with the law, otherwise they shall not be exercised. (4) The principle of responsible government. It refers to the legal responsibilities that administrative organs and state civil servants must bear when they violate the law, including the responsibilities of revocation, alteration and administrative compensation of administrative acts of administrative organs, as well as the administrative sanctions and resignation responsibilities of state civil servants who violate the law and neglect their duties.
2. The principle of reasonable management
The principle of reasonable administration means that the contents of administrative actions made by administrative organs should be objective, moderate and reasonable. The main reason of rational administrative principle is the existence and expansion of administrative discretion. Discretion refers to the right of administrative organs to make decisions independently, that is, the right to choose the way, scope, type and degree of specific administrative acts. Although, as far as the nature of organs is concerned, administrative organs should be law enforcement organs, and all their actions should be carried out according to law, due to the complexity of administrative affairs, it is impossible for the legislature to completely restrain administrative actions through strict legal norms, so it has to admit a certain degree of behavior choice of administrative organs in fact and law, that is, discretion. It is true that administrative discretion must exist in order to perform official duties. At the same time, however, because administrative discretion is less bound by law, it often leads to abuse of facts or unfair administrative punishment. Whether it is the abuse of administrative discretion or the obvious injustice of administrative discretion, it is the destruction of administrative rule of law. Therefore, we should not only recognize the role of discretion, but also strengthen the control of discretion.
Under this background, the principle of reasonable administration came into being. In essence, it puts forward requirements for discretionary behavior, that is, its content is reasonable. The emergence of reasonable administrative principle is a significant development of administrative law principle.
As a universally applicable basic principle of administrative law, the principle of reasonable administration requires that: (1) the motivation of administrative actions should conform to the administrative purpose; (2) Administrative actions should be based on proper consideration; (3) The content of administrative behavior should be objective, moderate and reasonable. These three specific requirements reflect the connotation of the principle of reasonable administration.
(5) Administrative legal relationship
1. The concept of administrative legal relationship
The administrative legal relationship refers to the administrative relationship adjusted by the administrative law norms and implemented by the state coercive force.
As far as the relationship between administrative relations and administrative legal relations is concerned, all administrative relations involving rights and obligations should be adjusted by law, which is a basic requirement of administrative law. Of course, it is impossible and unnecessary for administrative relations to be transformed into administrative legal relations. In the process of modern administrative management, the administrative relationship formed by administrative guidance, administrative consultation and administrative consultation certainly originated from the process of administrative activities, but because it has no rights and obligations, it is not suitable to be promoted to administrative legal relationship.
2. Elements of administrative legal relationship
The administrative legal relationship consists of the subject, object and content of the administrative legal relationship.
(1) Subject of administrative legal relationship
The subject of administrative legal relationship, also known as the subject of administrative law, refers to the undertaker of administrative rights (powers) and obligations (responsibilities). The subject of administrative legal relationship includes administrative subject and administrative counterpart. The administrative subject is the state administrative organ, which is an organization authorized by laws and regulations to exercise administrative functions and powers according to law and take responsibility for the consequences. The administrative counterpart corresponding to the administrative subject can be China citizens, legal persons and other organizations, or foreign organizations, foreigners and stateless persons in China.
(2) the object of administrative legal relationship
The object of administrative legal relationship refers to the object that the rights and obligations of the participants in administrative legal relationship point to. The object scope of administrative legal relationship is very wide, but it can be summarized as: ① things. Refers to certain material wealth, such as land, houses, forests, means of transportation, etc. (2) intellectual achievements. Refers to some form of intellectual achievements, such as works, patents, inventions, etc. 3 behavior. Refers to the conscious activities carried out by the subjects of administrative legal relations for a certain purpose, such as tax payment, land acquisition, traffic accidents, fights, etc. Behaviors include actions and omissions.
(3) the content of administrative legal relationship
The content of administrative legal relationship refers to the rights (powers) and obligations (responsibilities) in administrative law. Of course, the content of administrative legal relationship also includes the reasons and facts that cause the change of legal relationship, but the core part is rights (authority) and obligations (responsibility).
The main rights of citizens in administrative law include freedom, equality, participation in state management, understanding and protection of privacy, right of claim, right of suggestion, right of accusation, right of accusation, right of criticism and right of appeal. The main obligation is to abide by the Constitution, laws and regulations, obey administrative orders and assist administrative management.
3. Characteristics of administrative legal relationship
Administrative legal relations include administrative entity legal relations, administrative procedure legal relations, administrative adjudication legal relations, administrative reconsideration legal relations and administrative litigation legal relations. It mainly has the following characteristics:
(1) The administrative subject is a party to the administrative legal relationship. The administrative subject is the undertaker of administrative functions, which determines that one party in the administrative legal relationship must be the administrative subject.
(2) The administrative legal relationship is unequal. Unequal administrative legal relationship refers to the unequal rights and obligations of both parties in the legal relationship of administrative entities, and the administrative organ has a superior position. However, in the legal relationship of administrative litigation, the administrative counterpart has a superior position to balance the superior position of administrative organs in the legal relationship of administrative entities.
(3) The rights and obligations of the parties to the administrative legal relationship are prescribed in advance by relevant laws and regulations. An important feature of administrative legal relationship is that its subjects cannot mutually agree on rights (functions and powers) and obligations (responsibilities), and cannot freely choose rights (functions and powers) and obligations (responsibilities), but must obtain rights (functions and powers) and undertake obligations (responsibilities) according to legal norms; This is completely different from the fact that the subjects of civil legal relations can agree on their rights and obligations and make changes through consultation.
(4) The rights (powers) and obligations (responsibilities) of administrative subjects often overlap. The overlapping of rights (functions and powers) and obligations (responsibilities) of administrative subjects usually means the duality of their rights (functions and powers) or obligations (responsibilities). For example, taxation is not only the right (power) but also the obligation (responsibility) of tax authorities; Maintaining public order is not only the right (power) but also the obligation (duty) of public security organs. In this case, the administrative subject cannot transfer or give up his rights (authority) without authorization, otherwise it will be dereliction of duty.
(5) Disputes arising from administrative legal relations are mostly settled by administrative organs or administrative adjudication organs in accordance with administrative procedures or quasi-judicial procedures.