Chief justice post - a substitute administrative duties corresponding with the concept of administrative authority

[Abstract]: "the Executive Officer Justice" is for "administrative duties" and proposed, and administrative duties in the traditional concept of administrative Law, general and administrative body that is the obligation of civil servants. And according to the usual understanding of "duty" with some responsibility for the meaning of "duty" to represent the obligations of easy to give a "responsibility to lead" a false impression, after all, the responsibility is not equivalent duties, but also in the practical application of it can also cause some confusion, so if you use the "Administrative level Justice "instead of" administrative duties "can very well clarify the administrative authority, administrative staff Justice, the relationship between administrative responsibilities, and to strengthen the administrative norms of behavior and sense of obligation, as citizens and administrative authorities and the behavior of civil servants double guidelines.

[Keywords]: Chief Executive Officer responsibilities and obligations defined norms administrative duties

First, the problem: stArting from the text

Us to observe the March 22, 2002 the State Council issued the <<and comprehensively promote Administration according to Law to implement the Platform for>> the use of the concept of a few very common expression in the text:

Article 3, "a comprehensive goal to promote Administration according to Law" provides that: rights and responsibilities clear code of conduct, effective supervision and effective support to establish the basic administrative Law enforcement system. Also provides that: the executive power and responsibility closely linked, with the executive power of the main interests of the completely decoupled .

Article 5, "the basic requirements of administrative Law" provides that: responsibility are united. Administrative organ to perform its economic, social and cultural affairs management responsibilities, to the laws and regulations give it the appropriate law enforcement means. Illegal or inappropriate exercise of executive powers shall bear legal responsibility, authority and responsibility to achieve unification. guaranteed by law enforcement to do the right comes with responsibility, under the right supervision, and law by accountability, to be compensation for infringement.

Article 13, "establish and improve the decision-making and accountability system for tracking feedback."

Article 19 of "deepening reform of administrative law enforcement," provides that: accelerate the establishment of clear responsibilities, code of conduct, effective supervision to ensure effective law enforcement system.

Article 20 "in strict accordance with legal procedures to exercise powers and perform their duties."

Then please take a closer look: Article 3: The powers and responsibilities clear, the executive power and responsibility, in Article 5: Unify the power, management responsibilities, legal responsibilities, powers and responsibilities, power comes with responsibility, section 13 of: accountability, in article 19: the rights and responsibilities clear, in Article 20: duty.

You will find that these provisions have a "responsibility" of the word, my question is: which "responsibility" is a word that means? Is obviously not a meaning. Literal sense is first met: responsibility, authority and responsibility is a meaning, legal responsibility, accountability of the "responsibility" is also a means. my question again, less than one million words in the text so much with the use of "responsibility" concept with words what the word is rich in Chinese characters , or are there other reasons? I think it is because of the "responsibility" with the concept of the word to a result of different understanding. Furthermore, in recognition of the confusion, in our duties, responsibilities are often interchangeable between use. and I have linked to the administrative functions of, in China, administrative responsibilities, administrative responsibilities and it was mutual between the alternative uses. in particular: the relative administrative functions normally associated with the concept should be used: administrative duties. If a person that works "Any administrative body with executive authority, followed by enjoyment of administrative priority must also perform administrative duties" {1} (58, some directly to the "executive authority and administrative responsibilities" as the work of a {2} (225 -257, there are legal provisions: <<PRC State Compensation Law "> Article III, Article IV of the other violations, including specific administrative actions and executive authorities and their staff related to the exercise of administrative powers, to the citizens, legal persons or other organizations and causes damage, violations of administrative duties. {3} But my question is: Why is not the administrative authority directly correspond to the concept of conventional administrative duties or similar concept? the administrative duties of the "responsibility" and the executive terms of "rights" have the responsibility to forward the corresponding suspicion? whether the executive and civil servants will increase the psychological burden of enforcement results? administrative duties in the "responsibility" in the end is a "duty" or "responsibility"?

This paper tries to analyze these issues and that "the Executive Officer Justice" - a substitute administrative duties corresponding with the concept of administrative authority to resolve the executive power, administrative duties, administrative responsibilities and the correspondence between the three parts of the logic of structural problems.

Second, the analysis identified: administrative duties, responsibilities and administrative functions defined

Described by this paper can be seen above, I am here on "the administrative functions of Justice" is a traditional administrative law for the "administrative duties" in terms of concept.

In the administrative sector, the "administrative duties" and the "administrative authority" corresponds to the concept, according to the traditional view, administrative duties: a law requiring the executive to exercise the powers in the process must assume obligations. {4} Therefore, Administrative Law, talk about responsibilities, that means obligations. But according to the usual understanding of responsibility in the end what does that mean? In "" Modern Chinese Dictionary>> to "duties" under such a definition: the duties and responsibilities. { 5} It can be seen, with "responsibility" for the word to describe the administrative body has a certain authority and obligations some defect, after all obligations and responsibilities are not the same concept, likely to cause confusion in certain logic, therefore, this intends to use the "executive level justice" to replace the term "administrative duties."

(A duty and responsibility of the Legal Analysis

Accordance with the usual understanding of "duty" is a term meaning with some responsibility. In modern Chinese, the word "responsibility" has three interrelated and essential meaning. The first job to be done. Such as "status and responsibility "" due diligence "and so on. This responsibility is actually a role obligation. each individual in society all play a role, that have a certain status or position, and accordingly, it shall assume the corresponding obligations of their role. Second, given the occurrence of one of the specific issues, Development, change and contribute to the outcome has a positive obligation. such as "security responsibility" and "burden of proof" and so on. Third, because the things were not done (no performance failed to fulfill the role obligations or obligations to be borne by contributing to adverse consequences or mandatory obligations. such as "breach of contract", "tort liability" and so on. We can first two responsibilities as an active duty, and responsibility as the latter negative responsibility. responsibility in the negative, there is the Political responsibility for breach of Political obligation, in violation of the code of ethics and moral responsibility, non-compliance or breach of discipline and discipline responsibilities, but also against the law of the law. {6} (142-143 Some scholars believe that Based on the legal nature of job, responsibilities should refer to the statutory duties and responsibilities must be based on clearly defined legal norms. {7}

It can be seen that word "responsibility" is rich in meaning, so in our current legal literature, "responsibility" is often used in accordance with different semantics. Take in the traditional administrative law "duty" is. It I am afraid that means more inclined to previously mentioned "responsibility" meaning the first two. If the basis of this understanding, the "duty" and "authority" is still a relatively corresponds to the concept, but we are from the "responsibility" of the first two meaning, you can flash from a quicker mind the "obligations" of the word, because it means, and "responsibility" meaning the first two are in good agreement. According to this understanding, liability will inevitably become a general sense legal obligations, so that the actual use of the legal concept of the process will lead to some confusion, so more and more legal scholars tend to the "responsibility" as "responsibility" of the third meaning. Click here thought to define the legal responsibilities, not only can sort out the major areas of law and basic legal relationship between the concept, but also help in the legislative, executive, judicial and legal Research process more accurate and standardized use of these areas and concepts.

Thus, in administrative law, in order to make the law of the concept of more standardized and accurate, it is necessary to replace the search term "administrative duties", as "executive powers" to find a better "partner."

If we are to further the rights and obligations from the classification study, then, will find with "responsibilities" of the unscientific nature. In an academic, according to rights between the obligations of the causal relationship between, can be divided into primary rights and obligations and secondary rights and obligations.

First the right also known as "the original rights." Primary rights are the rights conferred by law directly or body authorized by law shall, through its active and established rights, such as property ownership, legal rights of the parties contract . primary rights obligations and the first corresponding to the obligations directly by the law or by the legal relationship of the main activities in accordance with the law set by active duty, and its content is not allowed to infringe the rights of others, or to adapt to the requirements of the subject of rights a certain obligation of conduct and obligations as a subject in its own right or as a principal to satisfy the legitimate claims. as citizens under the Constitution of the taxpayer, military service obligations, also known as secondary sexual rights "remedial rights" (right or remedy , remedial rights are violated in the original rights of their rights, such as the administrative counterpart of the right to appeal. secondary rights obligations and the corresponding secondary, its content is illegal should be held after the occurrence of the breach of contract, tort liability, Executive compensation and so on. {6} (114--115

Specific to the administrative law, we can easily draw the corresponding administrative authority is the primary right to justice administrative functions (corresponding to the primary obligation of duty, the administrative responsibility of the corresponding obligation is secondary. If the traditional point of view, with "duties" that obligation, as we analyzed earlier, the responsibility is with the meaning of responsibility. then right again and the secondary obligations of responsibility correspond to, and in accordance with the theory, first right and first of the corresponding obligations, rights and secondary secondary corresponding obligations. So that would be created in the primary administrative rights in both the primary obligation and the corresponding secondary corresponding obligations. This is obviously not valid. Therefore, this further illustrates the use of "administrative duties", said the unscientific nature of obligations. It also prompts us to "executive powers" to find a partner instead of "administrative duties."

(B Executive Officer and Establishment of the definition of justice

"Administrative authority" is the right to administrative sector specific, so, in order to seek for it a "partner", we will proceed from its source. Bring the right is, naturally, followed by duty, they can be described both in law very close twin brother. in the legal relationship, rights and obligations of independent, interdependent and mutually prerequisite requirements, claim rights obligations to people often need to act to implement their obligations, obligations to fulfill obligations to the people, who tend to the request of rights holders, with no rights without duties, no obligation nor the right to enjoy certain rights of the people also need to fulfill certain obligations, constitute the legal relationship from the administrative point of view, the composition of administrative obligations are indispensable elements. administrative relations, including relations between the four, the first category is administrative legal relations, the second is the relationship between administrative supervision of the legal system, the third category is the legal relationship of administrative remedies, the fourth category is within the administrative legal relations. {9} In the first Administration of the legal relationship, its constituent elements typically include: administrative legal relations subject, object of legal relations executive, administrative legal relations content. The content of administrative law that administrative relationship between the rights and obligations between the parties. Each specific legal relationship is the administrative rights and obligations of the parties constituted. and for the administrative body administrative legal relations between the content side of the law including the rights and obligations is the same, namely, the Chief Executive of the main subject of the rights and obligations. the administrative "obligation to show the relative inhibition as the main act or omission as a way to protect the interests of achieving some sort of constraint means." {10} Therefore, the same can not be lack of administrative obligations, or legal relationship is difficult to form and difficult to self-sustaining. to do a certain obligation to the people can get certain rights. Therefore, the "administrative authority" will partner with the administrative obligation. in the administrative legal relations, the Chief of the main terms of reference (the relationship between rights and obligations with its own characteristics. First of all, the most outstanding performance is the Chief of the main terms of reference (the rights and obligations with consistency. administrative body based on the requirements of administrative functions in the administrative legal relations it is necessary to the exercise of administrative powers, but also perform administrative duties, powers and obligations are often combined. If the security Administration legal relationship, to give non-compliance with security actors administrative law norms to administrative penalties, both terms of public security organs, but also the obligations of the public security organs. Second, the administrative law relationship of the main reciprocal rights and obligations of both parties. In entities, relations, have legal recognition of the Public Force of the executive power by the executive part of the right priorities to ensure the realization of the efficiency of administrative management, the formation of unequal legal relationship. administrative procedures laws and regulations of the obligations of the executive general settings, there are administrative procedures to adjust the administrative law norms relationship is a priority relative to the right side part of the realization of rights of the executive part of the relationship also subject to certain restrictions. This stage is the difference between rights and obligations of the legal relationship as we understand the non-reciprocity. In addition, administrative legal relations, the administrative body with statutory powers and obligations, we can not arbitrarily transfer or give up, such as tax authorities have to business enterprises and individual business tax collection authority, the authority can not be transferred or abandoned. {11} by the Here we can see that, in the administrative legal relations, and terms of the corresponding obligations and administrative subject status, occupation inseparable, that they inspired us with "the Executive Officer justice" to do the administrative functions of the partner. Some people might think that can continue to use "administrative duties" concept in its next position and then use the "administrative responsibility", I think that is wrong, one of the "administrative duties" or have at least half the responsibility for the content of questions are not resolved. "administrative functions justice" instead of "administrative duty" administrative body better able to explain the rights and obligations of the legal nature, compactness.

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Third, the significance: the obligation to strengthen the responsibility of the weakening of the Pan

(A significant one: the obligation to strengthen the obligation to make sure people can get certain rights. Therefore, the "administrative authority" will partner with the administrative obligation. In fact, we ignore the obligations of administrative law is completely unreasonable, from the the generation of rights and obligations can be seen by. all state power, directly or indirectly from the civil rights and powers of a special form of rights. modern democratic state is the actual concept of the operation here. We know citizens through elections, have their own representative bodies, representative bodies according to certain principles of separation of powers, the executive power from the decomposition of a unified country out of power, and form a government, a unified exercise the executive power. can be seen as a national administrative power an important part of power, but also from civil rights, civil rights is a special kind of transformation of the form. {1} (6 question is: in the transformation of civil rights, not only transformed into power without obligation. do certain obligations of the people can get certain rights.

Development today, the powers and duties of Administrative Law for administrative subject and the gradual establishment of the theory and civil service posts of administrative powers gradually or administrative staff and administrative duties replaced by justice, the executive authority must have administrative functions justice, there is no administrative law does not allow defined level of administrative powers, there is no administrative authority does not allow the administrative staff righteousness, which is a unified and democratic rights and obligations of a high degree of specific performance, but also reflects the administrative power and meaning of the indivisibility of administrative staff. and justice administrative functions and administrative functions not only indivisible nature, also has a close correspondence. If the administrative authority and administrative staff of the indivisibility of justice is a "quality" of the relationship, then the correspondence between them is a "quantity" of the relationship. two correspondence between those features: the number of administrative functions. is bound, but also the number of administrative functions should be defined, and vice versa. {6} (227 obligation to make sure people can get certain rights.

As a law, administrative law is above all a code of conduct [1], through the set of rights and obligations to regulate the behavior of civil and administrative enforcement actions, in order to achieve the administrative order. Therefore, administrative laws and regulations regulate the rights and obligations must be , specifically, and administrative staff on administrative functions defined specifications. based on the results of jurisprudence theory provides us know, so-called code of conduct is to regulate the specific Technology, refers to people's behavior provides a model, standards and direction. { 14} "norms" of the core meaning is for people to act in its pointer and standards, guide people's actions played a role. Kelsen also explained the "standard" means: "The idea is to regulate the expression of , something should occur, especially on how people should act, "{15}. The obligation norm is the norm in the norms and obligations of norms known as" curried "," command line "that such acts should be legal for people to Set a positive obligation of conduct, "No" that should not be so, the law for people to set a negative, not an obligation of conduct. to do some duties of those who can get certain rights.

Without attention to codes of conduct and obligations of the Administrative Law will regulate how people's actions as a guide plays a role? Without him, and direct accountability. Objective existence of all pedestrian violations <<Traffic Safety Administration Law "> administrative punishment and was frequently the executive civil service law had been expelled, dismissed processing is a typical example. and to establish and use the meaning of the concept of administrative functions, will undoubtedly strengthen the administrative norms of behavior and sense of obligation, as citizens and administrative authorities and the civil service to provide guidelines for the behavior of the double . to the current actual situation, in our emphasis on administrative law, "curried" function, than the promotion of administrative guidance and administrative services more practical significance, of course, both better and need to know is the rule of law to establish the beginning of our country.

(B Significance of the two: the responsibility of the weakening of the Pan

As discussed in earlier, "duties" that contain the meaning of responsibility, it can easily cause us a "responsibility to lead" a false impression, but here with the terms of reference should be a corresponding obligation not a responsibility, only the administrative body in violation of this obligation, only possible liability.

This obligation should be a restriction of administrative powers, including authority and procedures of administrative authority. Administrative privileges mainly refers to the administrative body should be strictly in accordance with the law limits the time and space to exercise his powers and not abuse rights or ultra vires. Program Permissions mainly refers to the administrative body should feel in terms of procedures for the exercise of justice, fairness concept, strictly follow the procedures of law enforcement, and effectively protect the rights of the administrative counterpart. If a violation of this obligation, we must assume certain administrative responsibilities. they are the must exist between the logical relationship, because of administrative body enjoys certain powers, is bound to bear some obligation to fulfill their obligations will not bear some responsibility. responsibility is not at liberty to lead, otherwise, it will certainly cause confusion in logic .

China is now the responsibility of the phenomenon of a pan, in some ways point of view, the concept of administrative responsibilities is to create one, it was considered administrative duties are "generalization of the administrative legal responsibility, this responsibility will be the responsibility is actually the same concept the obligation, unlimited extension of the concept of responsibility to expand, it is closer to the meaning of public responsibility in the Context. "{16} Pan phenomenon of responsibility to the executive and civil servants towards citizens is not primarily regulate the behavior of the control, but the punishment, so In our country, both in legislative or administrative penalty of law enforcement are all very well developed and active, especially in practice, accounting for administrative enforcement of administrative penalties is pretty high, because this is the best way to pursue civic responsibility and methods. even suggested that the Administrative Law the main responsibilities include the administrative counterpart to {1} (369. At the same time, the responsibility of the popular pan, but also for the executive authorities and the civil service in order to avoid legal responsibilities, as much as possible to circumvent the law, so caution law enforcement, law enforcement often choose appears. Sometimes in order to complete is not responsible for, simply do not make, so the administration is not as widespread in China. According to material introduced in 2002 in Zhejiang Province as the case is not prosecuted 522 cases, more than the previous year increased by 16% {17}. At the same time, accountability for the people's court as the final authority, and its implementation through the ruling of the accountability of civil servants to become the responsibility of a function, it may even determine the future and the fate of a civil servant, as China's "wrong case investigation system," not only the case of a judge, but an administrative act involving the civil service.

IV Conclusion

Therefore, if the "executive level justice" instead of "administrative duties", would avoid such confusion. Administrative functions, administrative functions justice, administrative responsibility, the Trinity, context clear. In addition, the use of "executive level justice" instead of "administrative duties" the one hand, administrative body can get rid of "responsibility front," the bound, active administrative body work, exercise all powers under the law better and can better improve administrative efficiency, on the other hand, with "administrative functions defined "instead of" administrative duties "to further standardize the administrative body can act strictly according to law to promote administrative body may not be overstepped. This way you can better promote China's administrative enforcement to a high degree of rule of law and a high degree of both human road.

Notes:

[1] In fact, the behavior of the academic norms of administrative law is the lack of knowledge, I will explain in another paper, entitled: <<codes of conduct and not just the referee norms - as a code of conduct for Administrative Law Research ">.

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