On the background of administrative practices, value and status

Keywords: rules / rule of thumb / Administrative Source / administrative practices

Summary: practice and experience in the rules under the Law between a specific issue. The rule of Law as a rational product of social experience to face a lot of frustration and total lack of, that is the administrative practice of generating intrinsic motivation. With Changes in the concept of administrative Law, administrative practice as the informal norms of administrative Law to varying degrees, to infiltrate the rules and play a different effect, reflects the limitations of mitigation written administrative norms, norms of administrative Law enforcement of a reasonable degree of discretion, create a new administrative rules other value. But under the concept of administrative law, adhere to the rules of administrative law under the premise is still the basic method of administrative law and the position.



First, the rules of practice and experience between
Max Weber said: "The practice for a specific act, although there is a certain impact, but not because of any physical or psychological coercion, and at least in normal circumstances, or even act as a direct result constitutes by special 'environment' some people just agree or disagree with the response. "[1] This is from a sociological perspective to understand the practice, it is an act carried out repeatedly and is accepted by the people, observe, and thus constitute a populations of a stable pattern of behavior. In the field of legal theory, practice is considered between the experience of walking through the rules and the specific form of social experience. jurisprudence to investigate the relationship between rules and the rule of thumb, the problem is related to practices , in addition to the formal rules of law, the experience of whether the practice should be to absorb as. In legal theory, how to define the scope of the law, whether the law should include experiences outside the rules of formal rules, determine the practice's position in the rules.

Practice of law norms could be incorporated into a broad range of different theoretical schools of known arguments. Modern analysis of law school that emphasizes the formal rules, exclusion of all other rules of thumb. In order to analyze the founder of Austin law school, for example, within the framework of its jurisprudence, any a law or rule is a command, this command includes a hope and a kind of evil, including the responsibilities, and obligations of the meaning of the sanctions. [2] ethics, customs, practices and other areas excluded from the law, the non- the status of a rule that any law not a rule do not have meaning or effect. The new representatives of law school, although HArt In "<legal concept>> in Austin, the theory of large-scale amendments, for the Austin legal order said to be negative, and HArt to replace the rule of law theory, but the science of jurisprudence for the scope of Austin, HArt still be adhered to. [3]
Early views of law school, suffered strong criticism of other schools. In the latter half of the 19th century, historical analysis of law on the question of law that should be excluded if used outside the law, or the true national spirit of the law it? law by the Political power to enforce, or rely on the law underlying social forces? On this basis, the history of law clarifies Customary law specific meaning. Des Moines, who is also on the Austin "independent Political society originated in the habit of obedience," the statement said were criticized. Since then, the habit is no longer simply be outside the law of the excluded.

70 20th century, critical legal movement, almost all of the traditional law was challenging, once again the inviolability of the traditional legal norms and principles of law and multidisciplinary creative to stArt the attack. [4] In this context, we note to analyze the number of representatives of law school, though still adhering to the orthodox spirit of the rules in how to deal with issues outside of the practice, it is clear to make a larger correction. As the representative figures of the frank McCormick : "The rules are not as Institutional Fact all the law and some social habits may play a role together with statutory law." [5] He also raised the legal home should answer the existence of the law, it is in society and law and modalities the relationship between social problems. [6] shows that the custom, usage has been the analysis of the scope of jurisprudence, to regain a place.

The development process of law in China, the legal rules and the relationship between the rules of social experience is also often face the problem of jurists. So, how do we look beyond the customary rules? New natural law school to Dworkin's view We provide valuable insights, he pointed out that in a period of social stability, analysis of law or legal positivism are useful, they can explain the legal aspects of a society. But when a nation is rapidly changing and turbulent times, this law not enough, they all ignore the non-regular "principles, policies and other criteria" role. [7] the process of building the rule of law in China, perhaps in this era. the changing demands of social reality, we are required to re-examine, including social experience, including rules of practice to meet the practical needs. Fortunately, our legal scholars on the habits, practices, Research is not uncommon, some scholars have been keenly aware that the rule of law in China, the process of upheaval, whether It is recognized or not, the habit will be there, are generated in the development of the law in place of some influence. habits will always be lawyers or legislators in the analysis and design development of the operation and effect of law can not forget a basic background. [8] which is committed to continuous improvement in our law norms, emphasizing the authority of the social background of the rules proposed even though they may not be welcome mainstream issues worthy of reflection. and the administrative practice is that One problem is the concrete embodiment of the law depArtment, how to analyze and understand the rules of administrative law and administrative practice of the role of informal rules such as relationships, is administrative law and must face the social realities of attention.

Second, the formation and significance of administrative practice
History from the development of administrative law, with changes in the concept of administrative law, administrative practices to penetrate informal norms to varying degrees, among the rules of administrative law, and play a different effect. Early stage of development of modern administrative law, administrative law for the control of the core ideas state power, especially executive power, prevent the government took the old dictatorship, according to law as absolute, passive, mechanical principles of public law, [9] showed the typical form of rule of law. under the guidance of this theory, the legislature sought to fine, avoid general terms, customary law, legal and judicial precedents, the majority of administrative law norms must not be interpreted as the sources of administrative law, administrative regulations, orders shall not be binding on the people of the norms of modern legislation the basic tenets of the country. [10] This law school and early analysis is closely related theory. Since the behavior of the executive by the strict regulation of legal rules, statutes, the only source of law, administrative practice, of course there is not much living space of the .19 of the 20th Century, with the capital capitalist economy to develop in depth, the governmental authority in all areas of a large number of social and Economic expansion, to ask the executive power exercised strictly in accordance with the Legislative Council can not meet the actual needs of society. To meet the social needs of the executive, legislature to give the executive a lot of powers, including the executive power to draw the legal norms, interpretation and administrative discretion. informal rules may be construed in accordance with administrative authority or power source. It is noteworthy that, beyond the interpretation of legal texts and in practice uncommon, "according to law" seemed to be somewhat illusory. and explain the rules or exceed many-fold changes in rules is no doubt that people will know what to do.

To this end, the administrative law theory has entered a new phase, that is, returns to the constitutional framework to further reflect on the operation of the executive power to require the executive power should be subject to the legislature, judiciary and civil rights constraints. In this context, while advocate the implementation of administrative organs interpretation and Application of administrative law norms, informal rules such as play practice complementary role of formal rules, and promote the legislative, executive and judicial interaction between the three powers. [11] However, in full compliance with the rule of law model of pragmatism to allow any interpretation of the text above the law, or it may destroy the fundamental meaning of rule itself. Only the down in the rules and informal rules of interaction, in real terms in the rule of law is chosen route is the more appropriate strategy and administrative practices in the field of administrative law is still important.

Administrative practice of the motivation is still to produce its own intrinsic value and utility. As a rule of law as a rational product of social practice, when faced with a lot of frustration and total lack of, and practices as rules of thumb can make all the defects in the official rules. American scholar Deborah Stone (Doborah Stone) In "" Political decision-making of art>> that, in the city [12], the formal rules of the implementation and observation must be based on informal "rules based on experience ", so law enforcement is often more dependent on a number of informal guidelines may be based on intuition, and in a fair and consistent view of their own way to impose penalties on crime. and their views of justice is to Since these informal rules, such as: social habits, the corresponding norms, moral beliefs and existing practices. [13] as a rational rule, of course, hope to the community through formal rules cover all cases in which accurate imperfectly statements with the intention of this rule will be thorough, flexible, value-free, equal treatment to implement in real life, but the complex social reality is often not as they wish, formal rules can not be perfect to complete so many requirements. So, Deborah Stone resort city mode to make up the rules of rational law. combining the characteristics of policy formulation and implementation, he pointed out that the city-state model (rule of thumb) and rational model (formal rules) exist, there is need for and importance. These include: the right to be disposed of properly it is necessary, the policy problems are too complex and changeable, and even impossible to form a fully detailed rules, a sense of crisis, and legislators may be blurred by drafting rules to please the voters not with the drafting of the rules of diffuse excitation is not possible, the rules may require the flexibility of the fuzzy point is in a lot of actors and pressure, but not completely implement it, and so on. [14] Undoubtedly, the above argument from the rules point of view, the external causes, and the intrinsic characteristics of the national policy point of view a comprehensive summary, revealing the rules of administrative law must rely on the experience of the real rules of the objective facts.

Specifically, the administrative practice under the rules of governance of the positive role of administrative law, mainly in the following ways. One can make up the executive and legislative deficiencies. Legislation to face the ever-changing social reality, can not get rid of "lag" or " Vacancy "and embarrassment, within the rules with reference to life experience to further standardize the interpretation of executive power, both in the form of the rule of law to maintain the existing needs, but also to meet the real needs of higher demand the rule of law. The second is to reduce the executive abuse of discretion . Because the legislature goal is to eliminate unnecessary free right of disposal, but can not eliminate all of the free right of disposal, [15] rule under discretion is required to reserve space for the executive power, which is often the rules of administrative law The concept will be uncertain or ambiguous statements, referred to law enforcement authorities or law enforcement discretion determine. Third, with reference to administrative practice can be weakened to some extent the arbitrariness of administrative discretion, restrain administrative power, keep power in the coherence, consistency . As mentioned earlier, the rule of law in China, Dworkin called "in a period of rapid change and turmoil," the development of a particular background and development of the rule of law determine the path of Austin, on behalf of the purely analytical jurisprudence is far from enough, the law can not meet the stability changing requirements of the law can not take care of the new requirements, but can not deny the new social demands can not "ignore the non-rule 'principles, policies and other criteria' role." This requires not only the form of administrative law and from the real perspective to examine the relationship between the executive and the law. So, the key rule of administrative law is the government's behavior is no longer whether the legal form of sense, need to examine whether the conduct of government consistent with the law, "justice", so that "law Administration "to" legal Administration. "[16]
Of course, the administrative practice do not always reflect the active role, there may be restrictions on the role of negative, or even destroy the existing norms of administrative law, administrative law to have a negative impact. Common phenomenon is that some of the administrative norms actually has so-called " hidden rules "are replaced by the rules to maintain the original social order has been quietly taking shape. These so-called" hidden rules "as if the practice is worthy of the name, such practices are likely to perform by the Chief Executive relative to those with the express or between hint implied to be realized. Deborah Stone points out that public housing officials in a formal order to "come first" system of public housing in the elderly or the white Application priority access to meet, teach them how to to obtain much-needed housing eligibility. [17] In China, the administrative law specific circumstances, similar situations are not uncommon. administrative law enforcement departments in the face of manpower, insufficient financial resources, the overall low level of the rule of law, legal awareness is not strong, supporting legal specification is not complete and that sort of unhappy situation, the law enforcement in the public interest, departmental interests or the interests of a small selection of people to hesitate, or even circumvent the law through the practice of selective, which may be called the more common practice "selective enforcement" in some administrative authorities of "selective enforcement" has become customary thinking. The so-called "selective" enforcement and the rule of law over the last departure from the rules under the "Strike Hard", is distinguished by technical means under the rules of or in the discretion of experience within the rules of social choice with law enforcement, which are hidden behind a law enforcement community generally known to the "practices." many of these "hidden rules" Although under the pretext of legitimacy, but has protected the rules The "justice" constitute a threat to the power of its own is often another form of rent-seeking only. For example, the cultural administrative departments hold regular inspection of some of the special, public security law enforcement unit before the major holidays in a number of security management work raids environmental protection department in the face of a large number of law enforcement and human face of not following the status quo is not busy working overtime to law enforcement, which may help some of its internal law enforcement or law enforcement experience of the object known to law enforcement rules. the tax department of law enforcement some existing practices in law, it is often attacked by the public. The law enforcement process, there are law enforcement time, the object of law enforcement, law enforcement, and many other trade-offs and choices. While these administrative practice has its background and pragmatism why, but the goal is far from the rule of law and Administration, as the Constitution of disciplines in recent years there have been "good unconstitutional" and "vicious unconstitutional" academic debate [18] in general, is an objective reflection of social reality. This experience has been erosion of the formal rules are rules of fairness and legitimacy aside, and its survival under the rule, it is an indisputable fact, we can not turn a blind eye to its.

Third, as the source of the administrative practice of law
Department in the administrative activities of the administrative practice of the process of formation of the executive in the same transaction for the treatment of repeated use, means, steps and so on. These conventional practices, through gradual selection and stereotypes, then into practice. Administrative practice of the formation of its Spontaneous internal administrative mechanisms, in general, the formation of customary rules, the inevitable integration of many influential events or specific situations, combined with the knowledge and experience of truth, and the integration of two or more parties with different interests the common will. common law countries, usually through judicial review to test the interpretation of the executive authorities in the specification and other applicable administrative practice of the rule of thumb is ultra vires, the scope and intensity of judicial review of administrative practices may directly determine the survival space. [19] Department of State in the statute law, administrative law theory more around the administrative practice can become the Administrative Law of the basic issues. this system taking into account the characteristics of written law, chosen as the source of the administrative practice of law in this Perspective.

German administrative law theory, the emergence of customary law must have the following three prerequisite conditions: one in an objective, there must be long term and the general existence of conventional, two in the subjective, the parties believe the legitimacy of the conventional three Formally, there is a regulation of the conventional possibilities, that is sufficiently clear its specific content. [20] In addition, customary law as a specific source of administrative law, statutory law and traditional sources compared to the characteristics and formation conditions as well: First, should not be used to conflict with existing statutory law, common practice and get used to long lines, the second is the development of customary and statutory law is different and relationship by the parties themselves to create a common law norms, third, the establishment of customary law is not necessarily recognized as elements of the court, only when there is a dispute, the court may enter the field of vision before the court in deciding disputes generally recognized as the practice is customary fourth premise of the aforementioned elements may be lost because of that attributed to eliminate, or for publication or other changes after the enactment of customary law, so become null and void. [21] habits and practices within the meaning of content is the same as the mainland scholars generally do not have a deeper discussion. scholars from Taiwan, China disagree with the view that the administrative practice of the Department of repeated administrative organs of certain types of conventional services, with customary law generally satisfied with the general effect of the elements of the law were different. [22] The author believes that the differences between the two is used to law theory is based on civil law, rules of thumb extracted from society, and administrative practices within the formation of the executive practice. out of control and protection of civil rights executive power of the consideration required from the practice of internal Administration only to achieve social people's identity, has the basic elements of customary law, customary law be considered. That is the administrative practice of law can be used as the basic elements of the source and the premise. China's Taiwan region "Administrative Court" decisions also recognize the nature of an administrative precedent practices can be regarded as customary law, that is, not as a mere administrative practices of customary law, but by the executive general formed by repeatedly continue processing the administrative precedent, you can recognize their status with the customary law, administrative authorities should also be subject to its binding. If the Taiwan region of China, "Administrative Court" 1959 "sub-word ���� fifteenth case" that adopted this view: "The Chief Administrative Law precedent for the source of the original, if not with the efficient implementation of the statute was expressly contrary, Contentment, according to the basis for administrative measures. "[23] shows that the administrative practice of administrative law can become a source of very strict conditions. Although in theory, administrative practice location not in dispute, has also been recognized in practice, but" the Chief court "for calendar year directly to the referee of customary law, has not seen more as a fact to identify, whether the common law does not occur as the referee based on the questions. [24]
China is a relatively weak national administrative law, administrative law theorists on the common law has long been the source did not attract much attention, the importance of unwritten sources and in-depth discussion until the last few years began to appear. [25] specifically for the administrative practice less Research. early Researchers, most of the sources of law will be defined as administrative law, administrative law which comes from the law, how its manifestations. [26] a long time, confined to the traditional statutes, administrative law scholars of great Most scholars, including the administrative practice has been not to recognize customary law, including administrative, judicial precedents, the general principles and jurisprudence, doctrine and national policy, and many other common law origin. Only a few scholars keen to point out the proper status of common law sources, proposed Sources of administrative law, general principles of law, jurisprudence, practice and other unwritten forms should also be considered and valued. [27] but they did not conduct more in-depth discussion. from the current academic point of view, the Chief Law on the common law meaning and legitimacy of the source of some consensus has been achieved, including: First, the limitations of the statute, and second, the trend of legal pluralism and the third is the request of Administration according to law. Some scholars believe that common law origin in administrative law The main reason for the existence of: written overcome the limitations of administrative laws and regulations, take the initiative to respond to the challenges of expanding administrative discretion, to actively promote self-renewal of administrative rules. [28] Based on this, we believe that the source of administrative law unwritten law may reflect the basic features are: ease the limitations of written norms of administrative law, regulate the reasonableness of administrative law enforcement discretion, create a new administrative rules. administrative law theorists as to the administrative practice of the unwritten code of administrative law, the source, which itself is to take a compromise approach, this approach may not only solve the common law countries are bound to the plight of formal rules, but also the experience of these practices such as the unwritten rules of administrative law into the field of vision.

It is worth mentioning that in recent years the theoretical study of trends in administrative law that administrative law theory has increasingly focused attention on the administration of social rule of thumb rule of law function. Some scholars have suggested that in the interpretation of administrative law that should be seriously dealt with the dynamic of the purpose of explanation, focusing on the purpose of considering the law, the law developed during coordination with other regulatory requirements and the real world, holding adaptable attitude, as obtained for the conclusions of modern social needs. [29] proposed the integrity of modern administrative law Government, the reasonable administration, trust protection principles and objectives, but also to further develop the effectiveness of administrative practices were thinking. For example: the principle of reasonable requirements of the relevant factors must be considered administrative acts [30] and the situation rationally, [31] No doubt, the administrative practice that is one of the factors under its consideration. some academics have suggested, the government covers the principle of good faith between the administrative body integrity, the integrity of the executive and legislative, discretionary areas of integrity, the integrity of the administrative contract, the integrity of administrative guidance. especially in discretionary areas of integrity, should consider administrative practice. [32] Based on the above theory, recent Research has administrative practices to enhance the positioning of a high degree of legitimacy to the administration, pointed out that precedents (conventions) to be the legal argumentation is based on an inherent requirement for the rule of law, administrative law, the Government also needs to respect or consider the habit of people, and rebellious practices, the legality of administrative acts will cause the crisis. It is foreseeable that the development of China's administrative law rules in the statute based to strengthen the administrative practice of the unwritten law of sources is becoming increasingly important.

In addition, through case in the form of judicial power to strengthen the role of administrative practice can not be ignored. There is no case of administrative law system, judicial practice in the administrative case guidance system is already started, some cases will be finalized after the administrative practices, strengthen the rules of practice the content and effectiveness. the case as the rules guiding the executive power is itself a practice, and "follow the judicial precedent," a more mature theory of system support, and thus a new form of jurisprudence preserved the rules of administrative practice of the kernel will be less controversial and more acceptable manner as Administrative Law, Administrative Adjudication in the future to realize its normative value.

Links to Research Papers Download http://www.hi138.com four, the status of administrative practice
In the current situation of administrative practice before the administrative practice to be given a scientific definition. I believe that is the administrative body administrative practice in the administrative activities of certain administrative matters based on the repeated treatment for the natural, and with members of the community generally accepted and binding rules. It has the following characteristics. First, the Chief of. This characteristic determines the formation and administrative practices are closely related administrative activities. Second, the spontaneity. administrative practice is in the administrative process, relationship by the parties and the norms created by themselves. Third, the repetition. administrative practice was due to some administrative handling of the repeated Application of the formation, probably because after the legislative change to another publication or replaced by the practice lapsed. Fourth, the binding. merely administrative practice of administrative law is not an official source of law, but the administrative practice of administrative activities in the actual playing the role of Associate Administrative Law. Fifth, the unwritten nature. administrative practices to the form of unwritten out. In general, once a practice to be expressly provides that evolved for other law. Sixth, legitimacy. In general, the administrative practice should not conflict with existing statute law, otherwise invalid for violating the law.

The specific form of administrative practices from the point of view, both in writing, to the rules of style, but also non-written, insisted the conventional type, so the administrative practice is not exhaustive list. In view of the complexity of administrative practices and flexibility The author combines the practice of administrative practices and problems arise, make the following sort of administrative practice, classification, and listed some examples for empirical analysis. (1) administrative work within the rules. These internal rules are mainly designed to regulate the meetings, documents, consult , instructions, instructions, organization and personnel, working system. [33] Another feature of these administrative practices, which most of the rules on the practice of administrative procedures. For example, on the instructions of the practice, the lower superiors, first in charge of leading instructions Finally, instructions by the main leaders. Again, deputy division of labor on the practice of the Organic Law (in preparation) although there are provisions on the number of leadership positions, but which were in charge of what the specific "block" is not clear that the old practice qualifications as the "executive" deputy, who is in charge of the affairs of the important second, who "ranks" in the former. [34] In another example, the administrative law enforcement in the form of internal procedures, including six: the internal procedures for approval, directing the command's internal procedures, guidance recommends that internal procedures, internal procedures for administrative approval, recorded in the files of the internal procedures, internal procedures for filing behavior. [35] These internal procedures are basically in the form of the practice. (2) the formation of the executive power of foreign operation practice. this kind of practice is the administrative body under the law norms, combined with actual work requirements, formed to standardize the administrative processes relating to program content and physical content of the conventional approach. as security police station in handling mediation cases system, the formation of the marriage registration department asked the mediation system, the first year the State Council document says rural issues and so on. (3) With reference to the formation of the court precedent case guidance system. China is a state statute, no case law in the field of administrative law system . But the judges and administrative law enforcement in the Application of the law, often with reference to case judgments, including the authority of the jurist and Supreme Court cases selected in the "<Supreme Bulletin>> posted on the case, these cases have some guidance is the role of precedent, can also be regarded as confirmed as the administrative practices. (4) According to the principle of administrative law (not principle) to form the administrative conventional system. For example, not of the Administrative Review Law provides that "reconsideration of the principle of non-aggravated" or "administrative review principle of forbidding adverse change ", but these principles are today many countries and regions, the administrative law generally accepted principles of administrative review in our current practice is to do so in the general, this approach can also be regarded as administrative practices. I believe that, China should improve the following aspects related to system administration practices.

First of all, especially China's administrative law and related administrative actions within the system still need to improve a gradual process, which is a lot of administrative practice in administrative law is an important reason exists. Practice of executive use of the process is the exercise of public authority, both can protect the rights of citizens may infringe on civil rights, which is a double-edged sword. Some of the administrative practice of public administration in the realm of the world has an important position, and the laws, regulations and rules compared with a similar binding. For example, <<United Nations Code of Conduct for Transnational Corporations> "(1984) Article 8:" Transnational corporations should be subject to its operation of establishments where state laws, regulations and administrative practices established constraints. "WTO principle of transparency is also clear requirements, members of the administrative practices should be publicized party and administrative policies. which is necessary to restrain administrative practices should be as soon as conditions are ripe for the formal rules of practice recognized by down.

Second, administrative practices should be open and transparent. According to <<Republic of China on Open Government Information>> provides Information disclosure to protect the citizens, legal persons and other organizations to obtain government Information, increase transparency of government work to promote law administration, give full play to the people of government Information on the production, life and the role of Economic and social activities of the service. The promulgation of the Ordinance is indeed open for administrative practice to provide a legal basis. most of the administrative practice of Article IX of the Ordinance should also be listed are should be public Information content. which provides that the executive authorities of one of the following basic requirements should take the initiative to open government information: (a) involving citizens, legal persons or other organizations vital interests, (b) the need to be widely known or participation of the public , and (c) reflects the organizational setup of the administrative authorities, functions, procedures and other conditions. Thus, the administrative organ shall be some of the work practices through government gazettes, government websites, press conferences and the press, radio, and television accessible to the public know the way open, and accept social supervision.

Again, timely to consider some of the administrative practice in judicial review. Administrative practice of law, although there is no standard form of a conventional approach, but in fact as an unwritten source of law, administrative authorities direct binding and indirect binding administrative counterpart. So by objective and impartial judicial review of administrative practices and administrative norms according to the specific administrative act is conducive to protecting the legitimate rights of the relative. At this point, some scholars apply the law to further integrate the characteristics of the executive authorities, that should be subject to judicial review of administrative practices necessity, that the executive authorities in the specific administrative act will give priority to the norms applicable to low-order, more is his first for a number of administrative regulations of the department (normative documents), in accordance with their own administrative practice of an administrative act, the Application of the principle of the so-called priority. This law applies to the executive and the judiciary applies the law reversed the order of the characteristics of a judicial decision on the administrative regulations and administrative practices needed for judicial review. [36]
Still need to emphasize that practice it has its own vitality and its value, but the concept of rule of law under the premise that adhere to the rules of administrative law, administrative law is still the basic method and the position, but if lessons from life nutrition, fresh and lively on the practice's full attention, and then reflect on the effectiveness and implementation of rules, also known as administrative law is not the long-term way, which is still tireless in-depth study of administrative law scholars and source of power, perhaps also verified the law of the unique self-development of administrative law: Reconstruction, Deconstruction complex process of repeated cycles.




Notes:
[1] [Germany] Max Weber: <"Economic and Social>" (on paper), Commercial Press, 1997, 356 pages.

[2] J. Austin, Lectures on Jurisprudence, p. 89, London, Cambridge university press 1895.

[3] [English] Hart: <<legal concept>> Encyclopedia of China Press, 1996, p. 207.

[4] See Hutchinson & Monahan, "Law, Political, and the oritical legal scholars", 36 Stan. L. Rev. 199 (1984). Cited Lvshi Lun: <<Origins of Western Legal Thought> "(second edition), China Renmin University Press, 2008 edition, p. 201.

[5] Neil MacCormick, Institutions of Law: An Essay in Legal Theory, Oxford university press p70-72 (2007).

[6] [English] McCormick, [Austria] κ�򱴸��: <<System Act of>>, Zhou Ye Qian translation, China University of Political Science Press, 1994, p. 57.

[7] [U.S.] Dworkin: <<take seriously the rights of>>, Xin Chunying, Wu Yuzhang translation, China Encyclopedia Press, 1998, p. 40.

[8] Su Li: <<Sending Law to the countryside - the primary judicial system Research ">, China University of Political Science Press, 2000, p. 263.

[9] See HWR Wade & C. Forsyth, Administrative Law, 7th ed., Clarendon Press, p.5.

[10] Cheng Zhongmo: <<Administrative Law of the basic theory of> "(updated version), Taipei, San Min Book, 1994.

[11] Gao Qin Wei: <<administrative law norms to explain on the>>, China Renmin University Press, 2008 edition, Introduction, 19-20.

[12] of the rules in the city is divided into two kinds of rational mode and city mode. The former refers to the formal rules, the latter refers to rules of thumb.

[13], [14], [17] [U.S.] Deborah Stone (Doborah Stone): <<policy paradox: the art of political decision-making>>, Gu Jianguang translation, the Chinese People's University Press, 2006, p. 294, No. 295-296, at p. 295.

[15] K �� C �� David: <<casual disposal of just>>, 3rd edition, 217 pages, Wu Bana, University of Illinois Press, 1971. Cited in op Deborah Stone, p. 292 page.

[16] Hu Jianmiao: <"On the legitimacy of the Chinese principle of administrative law of >>,<< China Law>" 1998 No. 1.

[18] See Han Dayuan: <"Social change and the adaptability of the Constitution - A Review of Hao, the two children of Mr." benign unconstitutional "argument >>,<< Legal>> 5 1997 and other relevant articles.

[19] as a representative case: Chevron US Av. Natural Resources Defense Council, 467 US 837 (1984).

[20] Fritz Ossenb��hl, in Erichsen, Allgemeines Verwaltungsrecht, 10. Aufl., �� 6 �� 1Rn. 73. Cited Weng Yueh-sheng: <<Administrative Law> "(the book), China Legal Press, 2002, p. 140.

[21], [23] Weng Yueh-sheng: <<Administrative Law> "(the book), China Legal Press, 2002, p. 140, p. 142.

[22], [24] Wu G: <<administrative law theory and practical> "(TABLES), China Renmin University Press, 2005, p. 35.

[25] should be loose, the Yang Weidong: <"China 20 years of study Administrative Law>> China Politics and Law University Press, 2008 edition, p. 58.

[26] See Wang Min Chan: <<Administrative Overview>>, Law Press, 1983 edition, on page 7-10, Luo Haocai: <<Administrative Law>>, Peking University Press, 1996, Ying Songnian: <<Administrative Law New Theory>>, Founder of China Press, 1998 and so on.

[27] Shu-Yi Zhang editor: <<Administrative Law New Theory>>, Current Affairs Press, 1991 edition, p. 17, Wang Lianchang: <<Administrative Law>> China Politics and Law University Press, 1994, p. 17.

[28] Deliberate Zhang Zhiyuan: <"China Basic Theory of Administrative Law RESEARCH">, Beijing University Press, 2004, p. 140-143 pages.

[29] Hu Jinguang, Yang Jianshun, Li yuan: <<Topics Administrative Law RESEARCH ">, the Chinese People's University Press, 1998, p. 73.

[30] Wang Lianchang editor: <<Administrative Law>> China Politics and Law University Press, 1994, the first 54-57 pages.

[31] Hu Jianmiao <<Administrative Law>>, Law Press, 1998 edition, p. 79-80.

[32] Pan Rongwei: <"Are Government Integrity - Administrative Law and Business in the principle of good faith >>,<< RESEARCH" "-2003 3.

[33] Cui Xun: <<administrative practice of> ", in Ying Songnian, Yang Weidong: <" China 20 years of study Administrative Law>> China Politics and Law University Press, 2008 Edition, pages 266-270.

[34] Song Gongde: <<public domain soft-law norms, the principal source> ", in Haocai: <<Soft Law and Public Governance>>, Beijing University Press, 2006, p. 192.

[35] INTO: <<test the administrative practice of administrative behavior >>,<< Yunnan ADMINISTRATION INSTITUTE "" -2005, No. 1.

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