Beyond the form of the rule of law theory: an exploration of new Chinese Administrative Law

Abstract: "The new administrative Law" and "substantive rule of Law on the" rule of Law in China, the reality of the present situation of the administration as the starting point of "Democracy" into the theory of administrative and judicial process legitimacy and appropriateness of a preliminary system demonstration and construction of constitute the Administrative Law of China "in the form of the rule of Law," a powerful challenge to some extent, enriched and developed the rule of law on the administrative structural understanding of administrative law in China to promote the new path of exploration, such as more sophisticated theory, practice Gengjia properly, or administrative rule of law in China can achieve "inclusive growth" as well as the latest developments in administrative law the world provide useful experience in China.


Introduction

More than thirty years of reform and opening breakdown of the rule of law since the achievements of remarkable field of administrative law. Since 1989 "Promulgated <Administrative Procedure>> since the" principles of judicial review "as the core of the Chinese administrative law and administrative litigation in China increasing maturity of the legal system. then to <<Administrative Punishment Law >>,<< Administrative Review> "and" <Licensing Law>> other single sector law acts as the representative of the administrative law system to obtain a strong build. administrative action type of the development further support the administrative proceedings the referee technical improvement. the general part of administrative law to quote from the German "principle of administration according to law" as the core construct a strict regulatory framework of administrative law. based on judicial review and the two major principles of administrative law Administrative Law in China based on the "form of the rule of law," its embryonic system, the textbook by domestic administrative law, administrative law power of the main Research and academic organizations willing to share. However, this "rule of law in the form of" strict constitution based on Western decentralization framework and the negative premise of the executive power by default, the general theory of administrative law in the popularity of the initial support of the Chinese administrative system and the basic terms of contributions Zhuo construction, but with the world the openness of public administration and Democracy of trends and structure of China's own constitution divide starting to prove increasingly difficult to justify and guide the practice of China's administrative reform process.


Against this background, some administrative law scholars gradually Suspended "rule of law in the form of" simple specification demands seriously, "Democracy" on the field of public administration and administrative litigation system penetration and impact of the value, resulting in a "new administrative law" and "On the substantive rule of law," the two main response mode. "New Administrative Law" to expand the Administrative Procedure Act as the core system construction, public administration through the opening and expansion of Democracy and achieve self-legitimizing the administrative process, the pursuit of the Government and the public Further administrative decentralization of governance and cooperation in effect, representative of the Peking University Law School as Professor Wang Xixin is the <<public participation and administrative processes>>. "substantive law of the" Administrative Procedure Law as the core system construction to start through the judicial process open and pluralistic public opinion in finding "legal community" consensus prior to the "consensus" support for the legality of administrative judgments, representation of the Tsinghua University Law School Professor He Haibo for the <<real rule of law >>. I believe that these two current administration of the rule of law in China, the reality of the situation as the starting point of "Democracy" into the theory of administrative and judicial process legitimacy and appropriateness of a preliminary system demonstration and construction, constitutes China administrative law "rule of law in the form of" a powerful challenge to some extent, enriched and developed the structural understanding of the rule of law on the administration to promote the rule of administrative law in China to explore new paths, such as more sophisticated theory, practice more properly, or can be realized Administrative Law in China's "inclusive growth" as well as the latest developments in administrative law the world provide useful experience in China.


Form of the charm and illusion of the rule of law

Administrative Law in the form of the rule of law from Western norms of the rule of law on the state. In the theory, as a mark of modern state sovereignty is absolute "scientific" to be divided into three powers: legislative, executive and judicial power. Meng Desmond dove In "<Spirit of the Laws>> the nature and limits of power right from the point of thinking, made a classic of this argument, Kant after which they were logical proof of the separation of powers, that the division plan consistent with the form of a logical syllogism, the premise that legislative power to provide judgments, a preliminary determination that the executive power to determine the minor premise provides, as the final program of the judicial power to draw final conclusions. In the framework of the strict separation of powers , the "executive power" and "judicial power" only with the implementation of nature, which are negative powers. "no legal no administrative" a moment to become spirit of the times. in the strict framework of decentralization and negative default under the executive power and standardization of administrative law process is the image of American administrative law scholars, Professor Stewart, described as a "conveyor belt model", the point is: (a legislative responsibility to provide clear rules for all administrative activities, (2 executive power responsible for the implementation of the law, there is no clear shall not make any legal basis for administrative action, (3 jurisdiction is responsible for administrative activities consistent with the Council to review the law. In this way, the legitimacy of involving the evaluation of administrative activities, executive and judicial power, no self-will, Parliament is set as the only legal standard data. such an ideal framework for the rule of law in the West has never been fully realized, and it is merely the expression of the human through the Enlightenment and bourgeois revolution for the power of a rational order ideal types of demands.


Power of words can not cover up the ideal practice. Even in the closest to the strict "rule of law in the form of" frame half of the 19th century, the area of ​​legislative and executive decision-making along with the intensification of social conflict began to become more active, "judicial law-making "and judicial discretion in common law countries is a more ancient traditions and practices. With the advent of monopoly stage of capitalism, the intensification of internal conflicts and the intensification of international competition, the country's development policy needs and the proper maintenance of domestic order growing demand, the traditional parliamentary legislation can not be timely and effective response, have frequently passed authorization bill would give the initial legislative and executive decision-making power. to the Roosevelt New Deal era, the competence of the executive power a structural change, not Executive Council and then a simple law, but increasingly autonomous social management and social development according to the actual needs of the executive and legislative, administrative decision-making and even the administration of Justice, the normative basis for administrative activities, there have been new developments, in addition to the traditional parliamentary legislation , but also increased the number of species of administrative autonomy to design specifications, on the executive power of the "authority control" more formal and superficial, and the so-called judicial review has had to experience a "presidential packing the court" into the program after the constitutional struggle areas. to 1946, <"U.S. Federal Administrative Procedure Law"> To mark the United States 60 years of development of administrative law presents a field of administrative law that we "program to" and "democratic regression" picture of institutional change.


Constitute the ideal of "rule of law in the form of" charm, but also the limitations of fantasy and lies. Of the executive power changes and represented the United States turned to the world of administrative law is the rule of law in the new path to explore the Chief of the most important external experience.


"Democracy" into the implementation process: the response of Chinese scholars

Reform of Chinese Administrative Law in the academic and institutional history of the era seems to be repeated story of the Western tradition of administrative law, but the process has been greatly compressed. To King's famous "foreign Administrative Trilogy" as the academic foundation, China began a standardized basis of administrative law of construction, the basic framework is the "form of the rule of law." However, this presupposes the framework of the Constitution and the premise of administrative law can not be directly embedded in China's Political and legal structure. First, China's constitutional system is not a normative sense of the "three separation of powers, "but a" leadership of the party, the NPC's sovereignty and executive-led "complement each other, the vertical division of a collaborative system, the executive power of the power structure and the actual capacity of judicial review do not meet" the form of Rule by Law " default. Second, China is known as "executive-led" Political and cultural traditions, in addition to the party and government ethics on the ethical construction of executive power, executive power in China and the integration of social responsibility to guide the reform of the "Political" function. Third, as China fundamental aspects of Political modernization of the "democratization" in the existing legislative process is difficult to get the system in space and opportunities for citizen participation, administrative democracy is more suitable for the control of democratic transition and the mode field. At the same time, rely on the strict legal and professional boards legal interpretation of the judicial process is also difficult to separate support for the legality of administrative decisions, administrative power monitoring mechanism itself cause the legitimacy crisis. In this context, the "new administrative law" and "substantive rule of law theory" would appear to challenge and increasingly show a strong system of academic and.


"New Administrative Law" by Professor Wang Xixin monograph published in 2007 <<public participation and administrative processes>> to represent. The book from the past to discuss the traditional administrative law approaches, from the administrative procedures (the process of opening up of public administration and democratic point of view, modern administration proposed the rule of law, "public participation model" as a "new administrative law," the core. of administrative law that in essence is a kind of legitimacy on the interpretation of the framework of administrative activities, must face administration and real life world. of the proposed "public participation model" is an integrated framework of administrative law, which includes both the traditional rule of administrative law appeals and judicial review of parliamentary legal control, and increase the construction of the administrative procedures (Administrative democratic process as the center of the institutional system, and the latter as the core and features. Compared with the traditional "form of the rule of law" and "new administrative law" to achieve a series of innovations and breakthroughs: (1 core value in the administrative law an increase of "democracy" and "Rule of Law" simultaneously, (2 on the structure of the system of administrative law, administrative process for the construction of a series of administrative center of public participation and administrative systems, (3 functions in the system of administrative law, seeks not only to legitimize the decision of administrative law cases, and for including the administrative legislation, administrative decision-making, executive and administrative Justice, including the legalization of the whole executive power, as well as different interests from the public expression of democratic discussion and a formal system platform during the construction of administrative law as a limited but effective "democratic sub-forum" to resolve the modern administration's "democratic deficit" problem, (4 in the main schema of administrative law, and dilute the "administrative body - the administrative counterpart," the distinction between to "program participant" in the new concept of integrating the administrative activities of the different main characters, in a sense, through the Administrative Procedure Act inclusive construction to achieve the administrative process of the public's internalization, as the co-administration and citizen participation laid a kind of "intersubjectivity," the ethical basis, and (5 strengthen the administrative law "process thinking" to guide the legislative and judicial powers in the administrative supervision of the "program to" construct a modern administrative power for the power of autonomy between moderate legal relations, (6 Reason to recognize and deal with the structure of the Chinese Political system, scientific requirements on administrative decision-making, the "experts, the public and the government" into a rational, for the specific administrative goals and tasks, make the appropriate division of knowledge and power among the decision-making system is conducive to explore a not only suitable for China, but also for the modern world, the ideal picture of administrative decisions. Of course, this is just a preliminary to the Administrative Procedure Act as the core of the reconstruction framework How do the interface with the existing administrative system, how to design and promote open government information and administrative democratic participation and rational system of systems science and practice of how other local administrative decision-making elements (such as party committees, the NPC and CPPCC to regulate such conversion, how to cooperate with China's political democracy and judicial review of the development process, how to effectively use the Internet platform for open and participatory, etc., are the path needs to be handled carefully polished structural problems. In a sense, as Professor Wang Xixin colleagues Professor Shen Kui's "open form of reflection on the rule of law" in the "open" and "reflection" of the demand and the "New Administrative Law" core objective relationship between the echo starting to prove. "Welcome to Wikipedia , tolerance is a big "no real concern about the process of China's administrative law scholars have not land on the Chinese practice of administrative law and lively indifference, nor can the latest developments in the world of administrative law reflected a rational system of turning a blind eye," the new Administrative Law "is open to the academic mind reflects the times. In recent years, Hunan Province, around the" administrative procedures "Expand the provincial rule of law has largely been in the exploration and testing of the" New Administrative Law, "the number of system elements, which there is reason for further attention and expectations.

Links to Free Download Center http://www.hi138.com paper on the administrative procedure law and love and promote the different, some scholars put forward from the perspective of judicial democracy Administrative Law of China "substantive rule of law" theory, which the Professor He Haibo The monograph published in 2009 <<real rule of law>> to represent. "substantive rule of law" as a "form of rule of law" symmetry, not in the traditional theory of the rule of law under the "judicial review" another way outside the field (such as the "New Administrative Law "It will introduce the judicial process of democratic values, rule of law presents a accommodate elements of the Administrative Procedure Law and Democracy reconstruction framework. Professor He Haibo that" real rule of law "sense of the basic problems with his own long-standing practice of Chinese Administrative Law concerned about the case. He tracked through a large number of cases found that the expression of the law and judges of the specialized rules of interpretation is not able to provide the legality of administrative decisions justification, too much emphasis on "professional reason" governing both the legal person is not conducive to establishing the authority of Justice, law and society is not conducive to communication and the development of law itself. "substantive rule of law on the" basis for the legal sources and proposed a new understanding of the judicial process, as follows: (a law is not just Parliament Since the formulation of law and the judge-made law, its most fundamental is based on the origin or legality of the "legal community" consensus, (2 "Legal Community" is not just a collection of legal persons, but of all members of a collection of political and social community , (3, in the process of Justice necessary to open and public discussion on the basis of common consensus that the legal community, and the legality of this consensus as a decision support elements (4 in an open judicial process, "the experts, the public and leadership "have different roles and responsibilities. the" real rule of law "theory from the construction of the first doctoral thesis, but with the academic progress of ideas, has become increasingly beyond the scope of administrative law, to become oriented judicial process in general "substantial Justice theory." binding on the judicial career of the moment / Justice and the Supreme Court arguing the popular "people's justice" reconstruction campaign, I think that Professor He Haibo of such a source of concern for administrative law, gradually However, theories of justice arrived at the general path of thinking has obvious practical and theoretical value. However, some problems of the system has yet to start a more in-depth thinking and construction, such as (1 the nature and scope of consensus: "Consensus" in the end is a fact or a standard, specification is the nature of which, the judicial application of the need for space-time "local factors" restriction, other than the possibility of the formation of the earlier consensus discussions generated by "new consensus", how to deal with both relationship, (2 full observation of administrative law and refining: limited to administrative proceedings of the reconstruction, but because of the status of judicial power and the scope of administrative litigation practical limits access to the courts of the administrative activities of the types and quantities are limited a large number of administrative activities within the end of the administrative process, just to discuss how the Democratic Justice found that "consensus" to support administrative decisions (and thus also the legitimacy of administrative activities, it is very thin, (3 institutionalized the role and function of standardization: of the proposed judicial process, "experts, the public and leadership", but only for the various roles and functions described in a preliminary distinction between the system without the implementation of specific aspects, in particular, and practice does not already exist in Anglo-American jury system, European The assessor system, such as the Chinese people's jury system and a comparative study of the possibility of the system, (4 for the commonality of ethics and decision making structure of the theoretical integration: in fact, judicial decisions and administrative decisions with ethical decision-making and decision-making structure Many common, especially in the China University of Political scenarios are "Peoples" pervasive, already has a certain amount of practical experience, not from the perspective of an integrated theoretical perspective of this description and construction, (5 new judicial theory of the strong backing of the lack of political theory: theory of justice through both critical to construct a new theory of justice, which strictly speaking is a kind of democratic theory of justice, if there is no corresponding theory of political theory, especially the support of democracy In theory it is easy on the foundation is not strong. Of course, the greatest of intentions or explicitly put forward the legal positivism and judicial autonomy question, remind the judge in the course of justice professional with an open mind to accommodate and understand the views of the public The roots of the "legal community" consensus, and prompts an open judicial philosophy that is conducive to establishing the social foundation of judicial authority. the legitimacy of the decision from the department of administrative law for the Chinese puzzle step by step toward universal jurisdiction and even judicial philosophy of care, mental acuity, however bumpy the road is also more. However, despite of the "real rule of" the growing deviation from the professional field of administrative law and jurisprudence into the general area or judicial philosophy, however, any theoretical result of its crystallization still will directly affect the process of China's system of administrative law - because even the "new administrative law" does not dare to conclude that construction of the administrative procedures of the democratic legitimacy of the executive power to the end of proposition and completely remove the need for judicial review.


Republican, re Decentralization and Administrative Law in China's "inclusive growth"

Field of administrative law the "new administrative law" and "substantive rule of law on the" theory of actually constitutes a traditional "forms of Rule by Law" by Robert of the "principle of administration according to law" and "the principle of judicial review" of the strong challenge by "democracy" then into the modern administrative process and the judicial process, jointly filed an administrative rule of "democratization" proposition, which provides Chinese Administrative Law "inclusive growth" possibilities. In my view, these two have more of significance of macro theory and system, to those two. The first is administrative law, "Republican" of orientation. participatory Administrative Law Theory from the republican tradition, from the republican civic virtue and responsibility on normative discourse. two basic theories of argumentation during the time cited Rousseau, Mill, Habermas and the 60 years since the 20th century, in consultation with other democratic theorists and political theory, by nature of republicanism theoretical context. Administrative Law "Republican" of approach would mean the democratization of the process of construction of the basic administrative law, and by virtue of the construction of civic culture and to achieve capacity building. followed by the "re decentralized" structure of thought. Tradition separation of powers confined to the public domain "separation of powers" and through the constitutional framework of the strict guard of the separation of powers, separation of powers in the state and society through the public domain on the theme / private sector distinction to complete, citizen participation in politics system channel is limited to elections, the country's political elite representatives through the mechanism started. and "re-separation of powers," the classic understanding of this breakthrough, mainly in two aspects: First, separation of powers within the decentralized structure of the actual recognition changes and program-based defense of the normative rationality, and second, separation of powers in the state and society on the breakthrough and the public sphere / private sphere of simple correspondence, the executive power / area of ​​jurisdiction of the state and society to rethink the possibilities for cooperation and its systems and mechanisms. This exploration of administrative law is administrative law despite the internal problems, but increasingly the value and significance of the Constitution.


"Inclusive growth" is the latest political references, focusing mainly on economic and social fields. In fact, as with the economic / social rule of law in areas of frequent interaction field, this formulation also has a reasonable and true nature. Inclusive logic provided that the open and admit that this is the original structure of the norms of amendments tightening. Chinese Rule of Law "inclusive growth" of the fundamental outlook is a "new administrative law" and "substantive rule of law theory" shows us the new structure and new path, although there are many theoretical logic and institutional arrangements of defects. Major reviews books:
Xi-Zn: <<public participation and administrative process - an idea and the system of "The Frames>, China Legal Publishing House, 2007 edition of democratic He Haibo: <<real rule of law: for the legality of administrative decisions>>, Law Press, 2009 edition

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