Outside itself, the Administrative Procedure Law

[Abstract] This paper analyzes the impact of the implementation and development of the Administrative Procedure Law of factors outside of its own that should be based on the existing Political system to give the size of the space it provides to consider its development and improvement.

[Keywords:] the Administrative Procedure Law, the power structure, judicial reform, effect
[Text]
Enacted in 1989 <<Administrative Procedure Law>> exception when people carrying a heavy rule of Law ideal. When it is implemented, people have high hopes for it. That it marked the enactment of Contemporary China, "The End of the rule of man" "era and the beginning the rule of Law" means a "quiet revolution," with "epoch-making milestone". [��] Today, it has enacted two years. in accordance with Chinese custom, every "ten" need to Daqing. However, we can celebrate what? I think it is a role in affirming the same time, we need reflection.

We have to admit that China's administrative proceedings, "the system into a dilemma of reality and the other side, people's expectations and the gap between administration rule of law is evident, the administrative litigation system constraints in terms of power appeared to be quite powerless." [��] administrative cases by the low number of cases, withdrawal rate, the appeal rate, revision rate and high rate of complaints and enforcement difficult, has made it to the administrative litigation system "confidence" has been hit hard. [��] Although the Administrative Procedure Law proclaimed the ideal of the rule of law, can not become a way of constitutional, social structure changes for the role is quite limited. This situation causes a system design itself, but more important reason in the system. Below I will analyze a few of the reasons While there may not be comprehensive, but, I think, is useful.

First, China's state power structure
The legislative intent from the Administrative Procedure Law of view, administrative supervision, the Chief of the rule of law is its purpose. Jurisdiction to supervise the executive power constraints, we first need to clarify the powers of the national system.

State power in the vertical into the central and local powers. In the lateral generally divided into legislative, executive and judicial powers. The exercise of legislative power by Parliament is law-making powers. Executive power exercised by the government is to enforce laws. the exercise of judicial power by the judiciary, is a controversial power of the referee. In our Constitution there is no concept of judicial power. our people's courts are judicial organs of the Constitution to exercise jurisdiction. People's Procuratorate is specialized organs for legal supervision, the exercise of prosecutorial rights. State and local governments at all levels is a national executive. The Judiciary is a concept in practical work, which includes not only the court, the Procuratorate also include the public security organs, judicial and administrative authorities. In our country, in administrative, judicial, prosecutorial power of the still a "supreme state power." Our Constitution provides that all state power belongs to the people, the people exercise power through the National People's Congress and Local People's Congress. National People's Congress is the highest organ of state power, the executive , judicial, prosecution, by its derivation, to it is responsible, subject to its supervision. This is our form of government, that is, under the People's Congress, "one government and two houses."
<<Constitution>> in the preamble paragraph of Article 7 provides for adherence to the "four cardinal principles". [��] "the pArty's leadership" is the "four cardinal principles" one. This is a Political principle, but also a constitutional principle. It is a profound impact on China's Political and economic life. the pArty's leadership is mainly reflected in: 1, pArty control the army, 2, cadres, 3, pArty control the media.

Party's absolute leadership over the army's leadership is. This ensures that the party respond effectively to difficult crisis situation. Is also the Communist Party from the "Revolution" failed to sum up the lessons of the blood. "Adaptation of the three Bay", the Party branch on a company basis to ensure the Communist Party's absolute leadership. any Political party to achieve a certain objective value exists, the Political parties to achieve their own political goals, and realize their pursuit of value, it must educate its own members to the social value of goals, affect the control society, to unite people's minds, so as to realize these goals, which no political party should do. party control "gun", "pen" is actually a control master "gun", "pen" people, this is also a principle derived from another "CCP administrating cadres." Dangguanganbu the promotion, appointment, supervision and management of cadres. Dangguanganbu, not only to control the use of cadres, including the use of the power of the cadres to control the process. This is our party Bufen the political system of the important reasons. the Communist Party as a leader, controlling the country's entire political process and political elements. our national power structure, in the People's Congress under the "government houses" before but also add a "party leadership ", is" the party's leadership "the principle of people's congresses under the" one government and two houses. "
In accordance with the constitutional text, people's courts exercise their jurisdiction, free from administrative organs, social organizations and individuals to interfere. Judicial and administrative power is tied up under the authority of state power. But, in fact, our courts do not need administrative attachment It proved too much. In our administration is the most powerful authority. regardless of the party political system, administrative actually become the leadership of the ruling party to achieve its most effective tools.

In such a power structure, mainly on the administrative supervision of the ruling party, followed by the National People's Congress has the constitutional status of respect. The exercise of jurisdiction by the courts to supervise the executive actually been marginalized. As long as the power structure does not change its effectiveness Compared with the law itself will be greatly reduced display. Similarly, even as special state organs for legal supervision of the Procuratorate, the supervision of the administrative role played by the extremely limited .1979 on June 26, Peng Zhen, Chairman In the second meeting of the Fifth National People's Congress on the <<People's Procuratorate Law "> note about the draft law" for the state organ's Procuratorate staff supervision is limited to violations of criminal law and criminal responsibility cases. As for the general violation of party and government discipline does not violate the criminal law cases will be borne by the party's discipline inspection departments and government agencies to deal with. "In the early days, prosecutors have made the general supervision of the executive power, but the powers do not have any good manner. For the general supervisory authority under the law of this function, prosecutors themselves that "came mainly from the legal guarantee for the unity and integrity of the state power to guarantee uniform national laws to implement properly." "the general supervision of the work on practice, the central direction several times, our country is unified power, consolidation, state organs and state organs at all levels of staff are actively implementing the constitution and laws. Therefore, the general supervision of the work, not generally done, as weapons can be retained by the Party to master. "[��] as a special state organs for legal supervision of the Procuratorate like this, the court can imagine the role of administrative checks and balances. The court can not stand the weight of administrative supervision? [��] twenty-enactment of the Administrative Procedure Law In the situation to demonstrate this.

Second, the discipline inspection and supervision
The supervision of the executive branch of the party is mainly conducted through the discipline inspection and supervision departments. Administrative supervisory authorities and the party's discipline inspection agencies under one roof, the implementation of a leadership team, a working body, the name of the two organs. Administrative supervisory authorities have not just an administrative authority, but government organizations. It belongs to the government in institutional preparation, and staffing is on the party system. subordinate relationship, the Ministry of Supervision, the State Council, composed of organizations are not as directly responsible to the Premier, but the Standing Committee directly to the Central Discipline Inspection Commission will be responsible for local monitoring of the local authorities directly to the Standing Committee of the Party Discipline Inspection Commission is responsible for. monitoring the principal organs of the same level discipline inspection commission led by the deputy secretary of the act, the deputy leader of the supervisory organ is not responsible to the chief leaders, and directly to the Standing Commission for Discipline Inspection or in charge of the Standing Committee of responsibility. Leadership authority, the executive and supervisory organs of the main person in charge and not all of the unit monitoring the implementation of administrative leadership, the division only in accordance with the Standing Committee of Discipline Inspection Commission in charge of departments responsible for the work of the Standing Committee in charge of the administration by other monitoring does not interfere.

This arrangement reflects the party's direct control of the process of power, the ruling party decided to exercise power not only to people, and to supervise the exercise of power. This is the direct embodiment of the principle of party leadership. Administrative supervision departments actually have been a direct party leadership. It is basically out of the government, supervision of government departments to become the ruling party. This reality constraints play a major role, often seen in many cases the news media, especially in cases involving senior officials, many of the Commission for Discipline Inspection , in particular, Central Discipline Inspection Commission, investigated. some systematic and overall abuse of executive power, such as the "three arbitrary" agriculture-related arbitrary charges, local bonds, medicine and medical services in the purchase and sale of unhealthy practices, but also by the discipline monitor the department of correction. "Office of the State Council to rectify unhealthy tendencies in the industry" is located in the Ministry of Supervision, May 2007 establishment of the National Bureau of Corruption Prevention is also located in the Central Discipline Inspection Commission, Ministry of Supervision. discipline inspection and supervision department of the executive department is actually responsible for the the right of general supervision, supervision process, including before, during and after, has become the ruling party leaders to monitor the Government's institutional arrangements. [��] Links to Research Papers Download http://www.hi138.com Third, judicial Reform
When a system problem occurs, we need to reform it. This is the most basic logic. Of the judicial system is concerned about the system, people with a vision. China's judicial reform began in the 90s, to Judicial career of, independence, authority for the goal. But in the face of judicial corruption and the masses intensified discontent with the reform of this trend is basically the end of 2002 year in the Central Political Committee established under the Central Leading Group for Justice Reform .2004 Central Leading Group for Justice Reform issued a <"Central Leading Group of the judicial system working mechanism on the reform of the judicial system and the preliminary views of>>. This paper argues that the current judicial system is in line with the requirements of China's social development, its problems do exist, but not the system on, but the working mechanism. the principles of reform must adhere to Party leadership, from the Chinese national conditions, in accordance with the Constitution and laws to secure. the direction of reform, we must continue to meet the needs of the people's judicial settlement of the people do not satisfaction problems. in the reform of the standards, to be satisfied with the people to test. [��] 2006 National political and legal system on a large scale with "the rule of law, law enforcement people, Justice, serving the overall situation, the party's leadership" for the content of the socialist concept of law education. In a sense, this is a summary of the previous stage of judicial reform and reflection, but also suggest directions for future reform.

November 29, 2008, the Central Political Bureau of the Central Political and Law Commission approved the submission of the <"On deepening the reform of the judicial system and working mechanism of a number of views on the issue>>. The opinion pointed out that China's judicial system to follow the basic principles of" One always adhere to the party's leadership. The second is always the direction of socialism with Chinese characteristics. Third, always proceed from our national conditions. Fourth, always adhere to the mass line. Fifth, always coordinated. Sixth, always adhere to the law to promote the reform. "[�� ] reform "in a focused, strengthen supervision, and steadily push forward the requirements of judicial functions and powers proposed to optimize the implementation of criminal policy of combining punishment with leniency, strengthening judicial ranks, and strengthening the Law 4 aspects to ensure funding for the reform task." [��]
These principles mandate from revealing look at the future of the judicial reform is to step up supervision and control in order to achieve Justice for the real China to solve the problems the people are not satisfied, the overall situation from the political considerations, in practice, progressive reform. [ 11], which in recent years, many people advocated strengthening the independence of the judiciary through judicial reform judicial Justice of the road formed a striking contrast. [12] With this reform, the central government will increase efforts to ensure funding for the judiciary, reducing the judicial tendency to localization. but this reform is still stressed the party's leadership, China's judicial independence is still a relative. to strengthen the judicial power of control to ensure their effective response to emergency and complex situations, maintaining social and political stability is still the focus of the ruling party to consider. The court is still the state of governance under the leadership of the party one of the sectors. to solve the problem in this utilitarian reform as a starting point, the court can not supervise the administration of going too far. because to solve the problem point of view, the Court of efficient and effective than the executive, the problems of China mainly relies on administrative agencies to promote the settlement. driven by administrative ruling party needs the economic development and social stability of the results to prove their legitimacy. As for the process to obtain such results Compared to the results themselves relegated to a secondary position. but the process can not be completely ignored, limited control and judicial review is necessary.

Administrative proceedings the right to show jurisdiction on the administrative supervision and restriction. Accuser administrative proceedings, case range, the limits of court review, the types of decision highlights a series of questions the relationship between judicial and executive power, it is a judicial issue, but also a political issue. I prefer to think it is a political issue, should be placed within the framework of the political system to consider. Under the existing political system to give the size of the space it provides to consider its development and improvement, rather than how certain ideas or should be like. When we are faced with a large number of grassroots petition, the face of intensified judicial corruption, dwelt on the fact that deficiencies in the system, when we look to the future of this system for its modification and improvement contribution to good ideas, these systems for reasons other than that we should think and face.

[Notes] [��] Gong Xiangrui: <<rule of law ideal and reality>> China Politics and Law University Press, 1993, p. 148.

[��] RULE: <"Formulations Regarding the difficulties in enforcing out of" Reflections> set <<Administrative Law Research "> 2009 3.

[��] �� LAW: <"From judicial power and the relationship between the executive power system of administrative litigation in China's Dilemma>> set <<CENTRAL UNIVERSITY" "(Social Science Edition 2004, 04.

[��] that the leadership of the Party, Marxism-Leninism Mao Zedong Thought, the people's democratic dictatorship, uphold the socialist road.

[��] Zhang Dingcheng: <<9 December 1957 Zhang Dingcheng Attorney in the country provinces, municipalities and autonomous regions on the report of the Conference of Attorneys>> contained in the SPP Research Programme <"China Prosecutorial System Historical Documents> > p. 279.

[��] The author has written <<abstract review of administrative acts of political consideration>> a text, from this point of view of the court review the abstract possibility of administrative action. The text of the Beijing University Law Information Network. Http://article.chinalawinfo .com / Article_Detail.asp? ArticleId = 50244 [��] include supervision of the meaning of leadership.

[��] <<hold high the great banner of socialism with Chinese characteristics and strive to create a new situation in Political>> - Comrade Zhou Yongkang, the work of the National Conference on Political Speech (December 24, 2007.

[��] Wang Qijiang: <"A New Round of the judicial system point to>> load <<Outlook>> 2009 1. Wangqi Jiang, Deputy Secretary-General of the Central Political and Law Commission.

[��] Ibid.

[11] to see from this judicial reform, strengthen supervision over power rather than separation of powers, the future is likely to be a principle of political reform in China.

[12] Xie Pengcheng: <<take the "oversight approach" of the judicial reform of the Road>> set <<Legal Daily>> July 8, 2007. Reposted elsewhere in the Research Papers Download http://www.hi138. com