1. The new constitution provides a constitutional basis for the legalization of administrative procedures. There are often provisions on the basic principles of administrative procedures in the constitutions of western countries, which constitute the fundamental legal source of administrative procedures in these countries. China's constitution does not specify the basic principles of administrative degree, but some provisions in the constitution can be regarded as the basis of legalization of administrative procedures. For example, the third paragraph of Article 2 of the Constitution stipulates: "The people manage state affairs, economic and cultural undertakings and social affairs through various channels and forms in accordance with regulations." . This provision is the constitutional basis of the principle of openness and participation in the administrative procedure law.
2. A large number of laws, regulations and rules on administrative procedures and methods have been formulated. Since the founding of New China, especially since the Third Plenary Session of the Eleventh Central Committee, China has successively formulated a large number of laws, regulations and rules on administrative procedures, which has obviously improved the situation that administrative procedures cannot be relied upon. After the 1980s, the process of legalization of administrative procedures was obviously accelerated, and relevant state organs successively formulated Provisional Regulations on Administrative Regulations and Procedures, Measures for Handling Official Documents of State Administrative Organs, Regulations on Administrative Reconsideration, Administrative Punishment Law and Administrative Reconsideration Law. These laws, regulations and rules have greatly expanded the coverage of the legalization of administrative procedures in China.
3. Some administrative regions have established relatively complete procedural systems. Although China's administrative procedure system is still relatively backward in general, in some areas, the administrative procedure system is quite complete. Such as administrative punishment procedures and administrative reconsideration procedures. Taking administrative punishment as an example, the Administrative Punishment Law promulgated by 1996 has unified, clear and specific provisions on the summary procedure, general procedure, hearing procedure and execution procedure of administrative punishment. In addition, a large number of separate laws, regulations and rules, such as the Regulations on Administrative Penalties for Public Security, have been formulated, forming a relatively complete system of administrative punishment procedures and rules in China.
4. The administrative procedure system embodying the spirit of modern rule of law began to be established. With the development of legal system, the value orientation of legalization of administrative procedure in China has changed obviously. Administrative procedure is no longer simply regarded as a tool to ensure administrative management and improve administrative efficiency. Its functions of controlling power and protecting citizens' rights and interests are gradually recognized by legislators. As a result, China's administrative procedural rules and systems, which embody the spirit of modern rule of law, have been gradually established. Such as notification procedures, hearing procedures, withdrawal procedures, review procedures, etc. This change shows that the legalization of administrative procedures in China is gradually moving towards modernization.
5. The administrative procedure system has gained a relatively independent legal status. With the development of the country's rule of law, administrative procedures began to gain independent legal status. For example, the Administrative Procedure Law clearly regards procedural legality as one of the three necessary conditions for the legality of administrative acts. The "Administrative Punishment Law" clearly stipulates that administrative punishment that has no legal basis or does not conform to legal procedures is invalid. These provisions show that China's administrative procedure is no longer a vassal of administrative substantive law, but has gained an independent legal status. Although the legalization of administrative procedures in China has made great progress and remarkable results, on the whole, the level of legalization of administrative procedures in China is still relatively low, and there are still many problems in the legalization of administrative procedures.
Second, the necessity and trend of improving China's administrative law (way)
In view of the problems and deficiencies in China's administrative law, we should improve and perfect China's administrative procedure system; According to the general theory of administrative law and academic research results, improve and perfect China's administrative procedure system, and according to the requirements of socialist market economy construction and China's democracy and legal system construction, improve and perfect China's administrative procedure system; Compared with advanced countries in the world, China's administrative procedure system needs to be improved and perfected.
(1) Perfecting China's administrative procedure system is a necessary way to change the backward concept that China has always attached importance to entities and neglected procedures.
Administrative law is the organic unity of substantive law and procedural law, and administrative procedure system is an organic part of administrative legal system. Without a perfect administrative procedure system, it is impossible to achieve the legitimate goals of administrative entities, and may even bring negative effects such as destruction. In the early stage of the construction of administrative legal system, generally speaking, the administrative procedure law often becomes an accessory of its substantive law, and the administrative procedure law is far less developed than the administrative substantive law. However, with the improvement of administrative rule of law and democratic concept, all activities in the administrative process must be legal not only in essence, but also in procedure. The rise and development of administrative procedure law makes it have the same legal effect and status as administrative entity. Violation of procedural rules, like violation of substantive rules, will affect the effectiveness of administrative actions.
The position of administrative procedure law in administrative law, in the United States, administrative law is due process and administrative law is administrative procedure law. American scholars believe that "procedural law is execution, and the life of law lies in execution." From a practical point of view, procedural law is more important than substantive law. A sound law, if implemented through arbitrary and arbitrary procedures, can not produce good results; A bad law, if implemented with sound procedures, can limit or weaken the adverse effects of the law. " In China, substantive law is often emphasized, while procedural law is neglected. As long as the facts are clear, the applicable laws and regulations are correct and the procedures are insufficient, administrative acts can be ordered to make up for them, which generally does not affect the effectiveness of administrative acts. In recent years, people have begun to pay attention to procedural law, and think that violating procedure is also illegal. In legislation, while stipulating substantive rights and obligations, corresponding procedural provisions have also been made. In fact, from a certain perspective, procedural law is more important than substantive law. If there are some substantive rules, but there are no good procedural rules to implement, no matter how beautiful the substantive rules are, they will not be implemented well in one ninth of the cases. On the contrary, even without a substantive legal system and a good procedural law, we can still achieve our ideal goal. Why there are always policies and countermeasures in law enforcement? The key is that our law lacks scientific and reasonable procedures, so that people adjusted by substantive legal norms can find many countermeasures to deal with this law, which leads to the failure to implement the law. Sometimes problems that cannot be solved by substantive law can be solved fairly and reasonably through procedural law. Even without substantive norms, as long as there are good procedural norms, things can still be handled well, so administrative procedural norms have the value of independent preservation.
The procedural obligations of administrative organs will affect the substantive rights and interests of the counterpart in many cases, but there are also quite a few administrative procedures that do not involve the substantive rights and interests of the counterpart. In this case, it does not mean that there is no question of rights and obligations. First of all, the administrative organ fails to perform its procedural obligations, that is, the procedure is illegal, which is the problem that the administrative organ violates the law. As far as "illegality" is concerned, there is no difference between entity illegality and procedure illegality; If the administrative organs violate the law and do not correct it, the harm will be far more serious than that of citizens. Secondly, in fact, procedural issues also involve substantive issues. For example, when checking a citizen's identity card, public security personnel must first show their own documents, which is an identification procedure. Whether you agree with yourself or not often does not affect the legitimate rights and interests of the other party. Legislators set up this procedure, first of all, to reflect the seriousness of law enforcement, but also to prevent counterfeiting, avoid social disorder and harm national interests. It can be said that many times, behind the procedure, some higher-level interests of the country and society are reflected.
All illegal acts should be investigated for legal responsibility, which is also an important principle of the socialist legal system. All these violations of legal procedures should also be investigated for legal responsibility.
(2) Establishing and perfecting China's administrative procedure system is the basic and main way to play the function of administrative procedure law.
Due to different values, the administrative procedure laws of different countries show certain functional differences. Theoretically, the modern administrative procedure law has three functions:
One is efficiency. Its basic function is to improve administrative efficiency. This type of administrative procedure law pays attention to less manpower and financial resources for administrative management.
The second is the control type. Its basic function is to control administrative power. This kind of administrative procedure law focuses on preventing administrative organs from exceeding their powers and abusing their powers.
The third is the right protection type. Its basic function is to protect the procedural rights of the administrative counterpart. This type of administrative procedure law focuses on the protection of various legal rights, especially procedural rights.
The functional type of China's administrative procedure law should be the right protection type based on efficiency. It is generally believed in academic circles that, according to the specific situation of China, both rights protection and efficiency should be taken into account. In order to improve citizens' awareness of democracy and the rule of law, citizens' procedural rights should be guaranteed. However, the level of productivity development in China is not high. If we overemphasize the protection of citizens' rights without social interests, it will affect the speed of economic development and is not conducive to the development of social productive forces. Therefore, we should also put efficiency in an important position. Efficiency and safeguarding rights are both either-or ideas, which are not desirable. The concrete idea of "combining" is to combine efficiency with rights protection, giving consideration to rights protection and efficiency. This type of function is neither completely effective nor fully guaranteed, but a choice between the two. Legislators should proceed from the common interests of all citizens and consider what procedures should be taken to protect the specific interests of each citizen. To do this, we must deal with the relationship between efficiency and rights protection, because efficiency is more about social interests, while rights protection is more about personal interests. The principle of dealing with the relationship between them is: to improve efficiency as the scope, to protect rights as the goal, and to protect rights to the maximum extent within the scope of efficiency.
To realize the above-mentioned functions of administrative procedure, only by perfecting the administrative procedure system, that is, by scientific legislation, can we construct China's administrative procedure law, and only by fully or as completely exerting the functions of procedural law as possible can we ensure that administrative organs can administer according to law, realize the management function of the public, and at the same time safeguard the legitimate rights and interests of citizens and organizations to the maximum extent, and realize the normal operation and social progress of society.
(3) The perfection of the administrative procedure system can effectively play the positive role of the administrative procedure system, which has important practical significance.
1, improve administrative efficiency. Administrative procedures are everywhere in administrative actions. Without certain procedures, substantive laws cannot be implemented. In order to approve an application, it can be done simply and quickly by several departments, or it can be stamped with dozens or even hundreds of chapters, making this procedure a long and difficult process. The parties can be allowed to engage in an act, and they can ask for filing or approval. Different programs have different efficiencies. Whether the licensing examination and approval is stipulated for one month or three months directly affects administrative efficiency. The function of procedural law lies in legalizing and institutionalizing reasonable procedures that can improve administrative efficiency and protect citizens' rights and interests, canceling unnecessary procedures or simplifying cumbersome procedures, thus greatly improving administrative efficiency.
2. restrictions. The so-called restrictive role means that the administrative procedure law can restrict the administrative organs in procedure to prevent them from dereliction of duty, ultra vires and abuse of power. This is mainly manifested in the following two aspects: first, the administrative procedure law makes the administrative procedure or administrative act legally effective. The Administrative Procedure Law regards administrative procedure as a necessary condition for the legal effect of administrative acts. The legality of administrative procedure does not mean that the substantive law is applied correctly; However, if the administrative procedure is seriously illegal, even if the substantive law is applied correctly, the administrative act is invalid. For example, according to China's patent law, the patent office must go through a three-month announcement period to approve the patent right. This is an administrative procedure for approving patent rights. If the Patent Office grants the patent right to the applicant without going through the announcement procedure, the act will be invalid, and even if the applicant's invention actually meets the patent requirements, the patent right cannot be obtained. Geography is an important means to combat corruption and other administrative violations. Dereliction of duty and abuse of power in administrative violations are mostly related to imperfect and irregular administrative procedures. For example, in the process of citizens applying for a certain right, because there are no clear restrictions, it may open the door for abusing power for personal gain. The lack of reasons and hearing procedures in the punishment procedure will facilitate the abuse of power. The administrative procedure emphasizes the principles of openness and participation, both of which have played an active role in preventing corruption. Improve and perfect the administrative procedure law, put an end to corruption and illegal phenomena from the system, and ensure a clean government.
3. Protect the legitimate rights and interests of citizens, legal persons and other organizations. The legitimate rights and interests of citizens, legal persons or other organizations should be guaranteed not only by administrative substantive law, but also by procedural law. For example, setting up a sequential procedure of explaining reasons, listening to opinions and even hearing and ruling in administrative punishment can avoid and reduce the abuse of power and protect the rights and interests of individuals and organizations.
In a word, in order to meet the needs of governing the country according to law, building a socialist country ruled by law and China's entry into WTO, we must establish and improve the legal system of administrative procedure in China. In my opinion, China should formulate the Administrative Enforcement Law and the Administrative Licensing Law as soon as possible, and further clean up the relevant separate laws, regulations and rules for reference when formulating China's unified administrative procedure law.
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