Administrative body and its legal obligation to pass control

Keywords: administrative Law / obligations transfer / obligation to pass / Legal Control

Summary: The administrative body has no legal basis in the case of its obligations will be transferred to the administrative counterpArt, will increase the obligations of the administrative counterpArt to form a "duty to pass." Obligation to pass on a certain reasonable times, but a violation of this phenomenon principle of administration according to Law, increasing the relative pArt of the administrative burden, likely to influence the relative administrative body and the relationship between the executive, leading to reduced credibility of the government and policy failure. In order to pass on the obligations of effective legal control, transfer of obligations required to follow the public burden equality, the Law retained the principle of due process and other public Law and system, and recognition of fundamental rights protection provisions in the Law does not specify when the chief subject of binding.



In the modern administrative activities, the executive for policy control, to improve methods and quality of public services, reduce administrative costs, improve administrative efficiency considerations, and sometimes by the legal provisions of its obligations, civic or other organizations bear, in pArticular, to the Chief organs of public service obligations transferred to the private sector. In the modern process of administrative reform, "the Government of its public service functions transferred to the private sector will lead to changes in the way of public services, and this shift is inevitable" [1] (P212). but in some cases, the executive is under no legal basis for the transfer of its obligations to the pArt of the administrative counterpart, thereby increasing the relative part of the administrative obligations on the legal obligation to share this anomaly in the legal practice known as "shift the burden" (Burden-Shifting) (See Us Airways Inc. V Barnett. 535 US 391. at418, (2002)) or "obligation to pass" (Obligation Shifting) (See Pannoni v Bd. of Trs., 2004 MT 130 of the Administrative Procedure Law will be part of such behavior as "unlawful performance of duties", and included a range of administrative litigation cases, but the concept itself does not fully cover the executive and the legislature , the obligations of law enforcement practice to pass the complex phenomenon, there is no way to provide adequate legal remedy), obligation to pass the frequent occurrence of the phenomenon makes the questionable legitimacy of the government work often lead to seriously affect the relationship between the government and the public should pay attention to.

First, the obligation to pass on the way
According to social contract theory, people will transfer to the state rights, the state undertakes to protect the rights of the people of the obligations of persons and property [2] (P18-22). So reasoning, and by the consent of the people or the representatives elected by the people consent authority State may not refuse to protect the people to fulfill their obligations of persons and property, nor shall then transfer its obligations to protect the people. But in the process of public administration, the executive sometimes no legal basis under the conditions that should bear some or all of transfer of legal obligations to the citizens, legal persons or other organizations, thus increasing the citizens, legal persons or other organizations or reduce the obligations of the Government's obligations, constitute obligations transferred.

In particular, the obligation to pass in practice, mainly the following expression:
1. The obligation to determine the administrative body and administrative body for the administration of the mutual obligations relative
In modern society, the government shall bear the social order, market order to maintain public interest obligations. However, in administrative practice, some local governments for administrative cost savings, improve administrative efficiency considerations, and sometimes mandatory to require the citizens, legal persons or other organizations to assist government departments to perform administrative duties, in fact, the obligation of the administrative body of the administrative body and administrative characterized as mutual obligations relative (Mutual Obligation). For example, a landlord to sign the police and the security responsibilities of each book, the landlord of the rental agreement tenant bear the main responsibility for personal safety. the police have asked the landlord tenant rental housing to qualified winds to be installed, and the lessee to provide qualified appliances and to remind residents check in before going to sleep every night sealed the fire and so on. If the tenant a gas poisoning accident, the police will impose heavy fines landlords [3]. In another example, a hard and fast rules to Family Planning Commission, signed with the owner to tenant safety, fire prevention and family planning agreement, by the community health officer inspection Marital total proved only after the occupation. This practice criticized by the media as the police in developing a "universal landlord" [4]. In these instances, the administrative organs should be performed to their own security and obligations of family planning management and administrative authorities characterized as the landlord obligations should be shared, in essence, is the mandatory administrative assistance to fulfill obligations of the landlord and the landlord does not set a legal responsibility to fulfill the obligation to assist, which will pass on the executive part of the obligations of the landlord. Again, in order to prevent people from falsely claim pension Kim, a province of Social Insurance Fund require the Council to receive the basic pension in the retirees eligible for certification for survival and apply for pension to provide "living proof" to provide a clear schedule for the failure results from the testing retirees, the basic pension will be suspended. [5] the existence of pension recipients who are eligible for certification IESS legal obligation, although the claimant pension obligations with the testing, but not the obligation so-called re-issued "living proof" prove themselves "alive." IESS requirements of the claimant to provide "living proof" is actually defined as the obligation to live testing of IESS and the mutual obligations of the claimant, which will be passed on to survive some testing obligations the claimant [6].

2. The public part of the administrative burden of determining the relative borne by the
To achieve the objectives of public administration, financial assistance is not provided in the premise, the government sometimes directly increase the citizens, legal persons or other organizations obligations of the citizens, legal persons or other organizations, rights and interests. For example, to create respect and care for the elderly in the city's social atmosphere, the city issued a document provided by the elderly over 60 years old cards in the city bus for free, one year to the bus company more than 200 million in losses, causing dissatisfaction with public transportation enterprise employees. to provide preferential benefits to the elderly, for the Government , is its legal obligation, but only a moral enterprise level in terms of obligations, the enterprise no legal obligation to provide this free of charge services for the elderly, unless the government from the enterprise by way of purchase price of notes and then distributed to the elderly free of charge , or to give businesses the corresponding compensation. Although the municipal government of this approach has been widely praised community, but increased the burden of some enterprises, affecting the interests of these enterprises, they have been the media as "good deeds for the government to pay businesses "[7].

Again, the State Council promulgated the "courageous and as a work-related injuries," the work injury insurance benefits system also reflects this tendency rule makers. <<Injury Insurance Regulations>> the provisions of Article XV, such as in disaster relief workers to safeguard national interests, harm the public interest activities, and regarded as work-related injuries, according to the relevant provisions of this Ordinance to enjoy the work injury insurance benefits. As the major industrial injury insurance fund industrial injury insurance premium paid by enterprises constitute, according to the recognized rules, courageous people have been injured after injury insurance benefits is actually the main responsibility of enterprises. However, the crack down on crime, rescue, relief, rescue, protection of national and collective interests and citizens of the personal and property lawful rights and interests of the government's obligations to ordinary citizens, there is no specific obligation to , in the present only to promote the morality of state. When the citizens for the protection of national and collective interests, and other citizens personal, property legal rights, and law to fight crime and natural disasters, the implementation of rescue, relief, rescue actions, its to act or to perform the duty of the government. According to law, the state should be given pension or compensation, that is, the losses suffered by the courageous people of public burdens, not only by the burden of enterprises (for example, Article 34 of the Police Act provides that: " citizens and organizations for helping the people of the police perform their duties, resulting in personal injury or property damage, it shall be given in accordance with relevant provisions of pension or compensation "). Therefore," courageous as injury "requirement is essentially the public part of the administrative burden of determining the relative the person who, due to the legal obligations of the Government by way of executive and the legislature transferred to the enterprise.

Again, sometimes the Government will aim to achieve the policy control costs onto the public to bear part of the administrative relative .1998 control policies since the real estate, and some parts of the housing support obligation determined by the real estate development enterprise to undertake, such as the 2006 National new house supply structure by determining the means to stabilize housing prices, the realization of housing security policy states that "since June 1, 2006 onwards, where the new approval, the newly started construction of commodity housing, dwelling area of 90 sq m of housing (including affordable housing) the proportion of area development and construction must meet the total area of more than 70%. "Government's obligation to protect the citizens right of residence, people in the real estate prices beyond the purchasing power for citizens affected by the realization of housing rights protection, the State obligation to implement control policies, but because of the implementation of housing commercialization in the process of policy, new home supply structure mainly by developers, and developers of housing supply structure is based on current interest in the theory, the principle of maximizing the decision, which The results of a policy to increase the cost of real estate developers, and developers will naturally cost in the price to increase prices, leading to the development of policy to increase the cost of regulation is ultimately borne by the buyers themselves. Since then, <<State Council on promoting the healthy development of the real estate market, a number of observations>> and some other policies to further clarify the Government's housing security obligations and sources of funding, which to some extent, can be seen as the government of its obligation to re-housing security awareness .

3. The law does shirk its obligations under the ground
Required to comply with the principle of government according to law, but the law because of its abstract nature, limited scope of services regulation characteristics, and sometimes impossible to make provision for some specific matters. In practice, when the citizens to seek legal help, sometimes there is no legal basis for the government to shirk the ground obligations. more typical example is the widespread media attention to the so-called "pick up baby dilemma," .2004 in August, Liu picked up in the bus on a newborn abandoned babies, has taken to a local denial of several related departments, but unfortunately support for nine months, but was heavy fines the local Family Planning Bureau [8]. In this case, Liu picked up an abandoned baby, the first thought is welfare. But the orphanage does not receive individual sent to children , only the public security department sent or received abandoned children in public places, so let him go to law enforcement agencies. but do not receive the public security department and inform Liu can no longer abandoned or given away the baby, otherwise he will be held accountable by law responsibility. He comes to look for Civil Affairs Bureau, also known as the Council can not accept, because the Civil sector is not welfare. Two months later, rural family planning as "illegal adoption of two children," the grounds of a fine home. Civil affairs departments and welfare agencies do not charge, Let possessor of the public security departments, namely, the health department and try to shift to the Civil affairs departments, otherwise fine, thus forming the "pick up baby dilemma" (see Yan farmers: <"Are Government to shift the responsibility of individual citizens, chilling!>> at: http: / / news.xinhuanet.com/comments/2005-05/10/content_2938188.htm ,2005-05-10). Under our Constitution provides that citizens from the state the right to material assistance, but the authority should be abandoned baby what kind of protection given, the law does not expressly provided that the executive only assume the obligation to support abandonment of the principle provisions of the Constitution, not the laws, regulations, rules and regulations of the specific provisions. "pick up baby dilemma," reflects the law enforcement In the absence of laws, regulations, rules and regulations of the circumstances, refuse to fulfill their obligations to pass on its obligations to citizens, in fact, a typical case.

4. The order of the Chief of the main obligations postponed
In some cases, the executive does not shirk its obligations, but it set the obligation to fulfill the order, will order the executive to perform the obligations on the last position, which in fact passed on its obligations. The most typical example is the current of the Samaritan Samaritan Law established by the local payment system. on the courageous and casualties for medical expenses, reduced income due to loss of working time, compensation for the cost of living subsidies (compensation), the main parts of Samaritan Law is a national obligation to determine additional damages for the ( compensation) mode. that the current Samaritan laws in order to determine the compensation and compensation is generally: (1) the infringer shall bear the liability of the first, (2) the second beneficiary of the compensation liability, (3) courageous person unit injury or assume liability for insurance companies or insurance liability, (4) Finally, executive compensation was the responsibility borne by the Government.

Under this payment system, the government and the establishment of the Samaritan Fund in compensation (compensation) in order to hold a final one, who can harm the perpetrator by the beneficiary or the courageous commitment of the unit staff, the Government is exempt from payment of compensation (compensation) liability . And in some places even defined only by the offender liable, the Government does not accept any compensation (compensation) liability. The law reflects the existence of the legislator in the understanding of a misunderstanding: the state suffered damage to only the courageous bear additional responsibilities or irresponsible, damages (compensation) rests primarily with the perpetrators or other members of society to bear. misunderstanding in this legislation under the influence of our current payment system Samaritan is taken as a supplement to pay the obligations of States mode, or an executive compensation for the supplementary payment mode. This compensation model for the executive body of the courageous people and timely compensation for the rapid treatment of obligations onto the violations through legal procedures, beneficiaries, courageous man units or insurance agencies other, resulting in the most courageous people in the practice of the damage can not be quickly filled.

Second, the obligation to pass on the production and damage
The Government will transfer its obligations to citizens, legal persons or other organizations, has a variety of subjective and objective reasons. In most cases, the government limited its control of public resources and public services, the reasons for the heavy task, had to its obligations transferred to the social and civic commitment. to the realization of the right to Education of our citizens, for example, the Constitution stipulates that citizens have the right to receive compulsory Education, the state has to implement the compulsory Education, the introduction of the Compulsory Education Law of 1986 also expressly provides that "the state students receiving compulsory Education free of tuition fees. "However, in 1992 introduced the <<compulsory education law implementation details>> rule" of schools to receive compulsory education charges. "Thus, this limitation of the State Council, explained to the national implementation" fee-compulsory education "legalization, and this means that: the full implementation of free compulsory education in China long before the period, the state's constitutional obligation to implement compulsory education through legislation transferred to the society and the family. Of course, since the state education obligations are lawful transfer of obligations can not be called to pass. modern public utility service obligations of the transfer mechanism is the most typical product of the part of government public service functions and duties transferred to the commitment of some enterprises can make full use of social resources, administrative services optimization quality. the way through the administrative contract part of the administrative duties transferred to the administrative counterpart, the executive and administrative body that co-operation between the relative form a positive interaction. Thus, the transfer duty is the product of the development of modern administration, there are reasonable . However, the obligation to pass shows just different.

In public administration activities, the Government based on its public interest and public interest representatives and the realization of the identity of the defenders, often in pursuit of the objectives of public administration unreasonable allocation of public burdens, and in other cases, government to citizens, legal persons or obligations to other organizations, is to be able to pass on the full use of social resources, which can reduce administrative costs, improve administrative efficiency. Just think, the aforementioned "proof of life" case, if retirees can receive the basic pension qualification testing prior to survive , not to a certain extent, to prevent "Dead Souls" pension inequities occur, save the country a lot of money? and in the "universal landlord" case, if the landlord can under its agreement with the executive, although Good security assistance obligations, then the number of security incidents can be avoided, the national family planning policy can be further implemented, and the executive authorities can significantly reduce administrative costs and improve administrative efficiency. In addition, provision will be deemed courageous work-related injuries, so courageous people to enjoy work injury insurance benefits, clearly help to protect the interests of courageous people, reduce the "heroic bloodshed and tears" phenomenon, which will help carry forward the courageous and the whole of society in society, the elderly free bus provided preferential treatment policy, conducive to the whole society's social atmosphere of respecting the elderly. stipulates that the Government only to the courageous people assume additional obligation to compensate damage can greater use of social resources, urging the parties make full use of legal remedies to protect their rights, reduce public expenditure.

Links to Research Papers Download http://www.hi138.com above analysis shows that the transfer duty is sometimes caused by objective circumstances, with legitimacy. But still faced the public obligation to pass the broad question, and triggered government action "legitimacy crisis." The reason is that despite its obligation to pass on a reasonable side, its still unreasonable and unlawful on the other side. In particular, the obligation to pass on violation of the principle of administration according to law, unreasonable increase part of the administrative burden relative, likely to influence the relationship between government and citizens, resulting in reduced credibility of the Government and policy failure.

1. A violation of the principle of administration according to law
The implementation of administrative body should have a legal basis for administrative action, which is the basic principle of administration according to one of the requirements. Administrative body be transferred to the administrative counterpart obligations should also have a legal basis, or would constitute a violation of the principle of administration according to law. Aforementioned part of the case, the administrative body to pass the administrative counterpart of their obligations, often without legal basis, thereby violating the principle of administration according to law.

2. The unreasonable allocation of the burden of
The Chief of the main part of its obligation to pass on the administrative counterpart, is to determine the public burdens be borne by the relatively small number of administrative, if not affected by the administration to give a reasonable compensation for the relative who, it will result in the unreasonable distribution of public burdens, undermine social justice . earlier "pick up baby gridlock" in abandoned babies right to life and material assistance from the state the right to custody of abandoned babies borne by the public, but citizens "Found Baby" and the move to bring their own good to the adoption of babies and no further obligation to discard (some administrative law enforcement agencies have advocated the "Do not let him go"), and because of the legal adoption adoption baby out of the conditions faced administrative punishment. This result can not allow a general rational to accept, unconscionability. In addition, the elderly free rides in the previous policy, the Government will respect and care for the elderly to determine the public costs borne only by the bus companies, bus companies to increase the burden, while others are not affected Obviously, the burden of undermining the principle of equality, resulting in the unreasonable distribution of public burdens.

3. Of the relationship between government and citizens
Administrative body without legal basis in the case of partial transfer of its own obligations to the administrative counterpart, may cause resistance to the administrative counterpart, the executive body of public burden borne by a few persons to determine, if you do not listen to their views, after obtaining the consent , and given compensation, could lead to discontent his obligations. These cases are likely to affect the case of the relationship between government and citizens, to the impact of building a harmonious society.

4. The credibility of the lower
Obligation to pass on the frequent, sometimes gives the public the impression that the government shirking its responsibilities, and sometimes it will make people question the government's decision-making capacity, and sometimes even think that the Government "and the people for profits." Obligation to pass on a lot in the previous case, actions of government departments hire widespread media criticism, some policy measures have also been the executive relative to the resistance to the government's image be affected, resulting in reduced credibility of the Government.

5. Public policy failure
Public policies aimed at enhancing social welfare, public policy can not be fully achieved if the set can not achieve the set purpose or purposes, shall constitute a "public policy failure" (Policy Failure). Prior to real estate developers by our government to impose obligations way, the housing security obligations through the completion of market-oriented approach to housing security system did not meet the set objective of reform policies should be an example of a policy failure.

Third, the obligation to pass the legal control
Building a harmonious society in the grand national context, all the factors that affect social harmony should be eliminated as much as possible, for which we should face the obligation to pass on the Government to give the "legitimacy crisis" (Legitimacy Crisis). Obligation to pass because of its harmful great, should be effectively controlled, from the legal control of this phenomenon so they have the need. for the realization of the obligations of pass-effective legal control, must follow the equality of public burdens, legal reserves, and other public law principle of due process and system, and protection clause of the fundamental rights recognized in the law does not specify when the chief subject of binding.

1. To comply with the principle of equality of public burdens
Equality under the theory of public burdens, "the public interest and the burden must be equally distributed to the whole, not by a few people pay" [9] (P727). In other words, government control of public resources, the obligation to use public resources to undertake public expenditure, and not burden the public or to determine a person from the minority to bear. However, sometimes the government departments in the public interest obligations must be transferred to the small number of people or a personal commitment, while most others do not take this obligation , so that only some people's interests are affected, while others are not affected, which would undermine the principle of equality of public burdens. At this point, "the only way to restore balance is to give such damages as compensation for [10] (P627 ). So, in the public interest, if a government obligations have to transfer the burden of a small number of companies or individuals, the government should give his obligations to compensate. aforementioned case of the elderly free rides given preferential treatment in the public welfare of the elderly car measures, should belong to the scope of the public burden, the payment of the fee should be in charge of the treasury in charge of the government, not just by the bus company to bear. the government for public interest obligations need to be transferred to the old car discount bus company, it should be compensation given to bus companies.

2. Recognize the validity of the fundamental rights provisions
The aforementioned "pick up baby dilemma", the relevant authorities to have no legal protection of abandoned children try to shift the grounds of clearly defined obligations of the right to life, will pass on the obligation to protect infants who picked up this practice of fundamental rights and constitutional spirit is incompatible with the provisions of . According to modern constitutional theory, basic Civil rights, particularly economic and social rights, and its main obligations are primarily national. constitutional provisions for fundamental rights of the legislature, are binding on the executive and the judiciary. Even if laws are not fundamental rights provisions of the Constitution made clear that the implementation of the executive shall not take this as grounds for refusing the protection of basic civil rights obligations. Although the Government should be based on laws, regulations, administrative rules and regulations, but in the absence of laws, regulations, rules and regulations as a clear case basis, The Government shall not be law does not specify refused to bear the obligation to protect the fundamental rights of citizens.

3. To comply with the principle of legal reservation
The modern theory of public law, administrative activities should be guided by the principle of legal reservation, "the administration made only in cases authorized by law to implement the corresponding actions [11] (P104). China's State Council <<comprehensively promoting administration according to law to implement the Platform for>> the provisions of : "No laws, rules, regulations and rules, the executive shall not be made of citizens, legal persons and other organizations, or increase the legal rights of citizens, legal persons and other organizations, the decision of obligations." Accordingly, there is no legal basis in the case of the executive You can not transfer their obligations should be relative to the administration, or a violation of the principle of legal reservation. legal obligation to retain the transfer principle requires a legal basis, there is no legal basis, obligation shall not be transferred.

4. Due Process Control
Principle of administration according to the requirements of law, administrative action should follow due process of law, principles of due process of law has become a modern one of the basic principles of Public Law .1354 for the first time in the British Parliament by decree explicitly mentioned and explained the law's "due process "or" without due process of law for the respondent, and the identity of the owner of any property shall not be deprived of their land or residence, shall not arrest or imprisonment, be deprived of their inheritance rights and the life "[12] (P1). United States Constitution Amendment Section 5,14 states: "without due process of law, shall not deprive any person of life, liberty, or property." China's State Council <<comprehensively promoting administration according to law to implement the Platform>> requires administrative action to comply with procedural due process principle that: " administrative management of the executive authorities, except those involving state secrets and commercial secrets protected by law, individual privacy, should be open, pay attention to listen to citizens, legal persons and other organizations that to strictly follow the legal procedures, according to the relative protection of the administration who interested person's right to information, participation and relief. of the administrative organ to perform their duties, and administrative management of a stake in relative, it should be avoided. "As the executive authorities of their obligations transferred to the administrative counterpart, usually affects relative to the interests of the administration, according to the principles of due process, the executive in the transfer of its obligations relative to the executive shall hear the interested parties before, or with the interested party of equality, voluntary consultation and interested parties to obtain consent, unless authorized by law administrative body can not take a mandatory approach and administrative opposite sign so-called "responsibility" to achieve its purpose of transfer of obligations.

In short, the obligation has become a modern administration in the transfer of an important and common phenomenon of law, obligations to make full use of the transfer of social resources, optimize the administrative service quality, relative to the executive and administrative body that co-operation between, the formation of positive interaction. But in the absence of legal basis, the obligations of the transfer will increase the administrative burden relative, relative to the interests of executive and administrative body to cause many negative effects, in which case the obligation to transfer is illegal, is compulsory to pass. obligation to pass in order to prevent the occurrence, it should be clear: the obligation to transfer should follow the principle of administration according to law, the obligation to transfer the law, there is no merit in the administrative body shall not be transferred to the administrative counterpart obligations, and shall not be public only by a few persons to determine the burden of burden, but in order to achieve greater public interest, if not prohibited by law case, administrative body is necessary to Yiwu transferred to the administrative counterpart, the transfer should follow the due process of law to hear the views of the relevant administrative relative , equal consultation and administrative counterpart, due to be transferred to the relevant administrative duties relative damage, it should be given relative to compensation.




Notes:
[1] Peter Hettich. Governance by Mutual Benchmarking in Postal Markets: How State-Owned Enterprises May Induce Private Competitors to Observe PolicyGoals [J] .32 Dayton L. Rev. 199, (2007).

[2] [Law] Rousseau. The Social Contract [M]. Zhaowu. Beijing: Commercial Press, 2003.

[3] Guo Ying. Tenant landlord gas poisoning and the police will be punished for the landlord to sign safety responsibility [N]. Beijing Daily Messenger ,2006-11-12.

[4] Feng Yuguo. Public authority develop "universal landlord" How can the government shifted responsibility for public [N]. Shanghai Securities News ,2006-11-13.

[5] Jiang Yuefei .6 living proof of delivery before 19 months have a pension [N]. Guangzhou Daily ,2009-04-23.

[6] Sheng Dalin. "Living proof" sectors to shift the responsibility to become a civic duty [N]. Hainan Daily ,2009-04-24.

[7] Mating Gang. The Government Neglect shifted [N]. China Youth Daily ,2002-03-06.

[8] MICROELEMENTS. Picked up a string of abandoned babies in trouble [N]. Yanzhao Metropolis 2005 to -05-01.

[9] Wang famous. French Administrative Law [M]. Beijing: China University of Political Science Press, 1988.

[10] [law] to Rivero, let Wa Lina. French Administrative Law [M]. Lu Yan. Beijing: Commercial Press, 2008.

[11] [Germany] Hartmut Maurer. Administrative Law Zonglun [M]. Gao Wei. Beijing: Law Press, 2002.

[12] [British] Lord Denning. Due process of law [M]. Li, et al. Beijing: China Political University Press, 1999.

Links to Research Papers Download http://www.hi138.com