The value of the system of administrative licensing

Administrative licensing system as a means of public Administration has been widely used in the modern state. As one of the ways the operation of public power, and executive orders, administrative penalties, administrative enforcement and other administrative actions compared to the administrative licensing system, weakening the power of color, reducing the administrative authorities and the relative distance between the enhanced communication between each other. In recent years active Research scholars of administrative Law administrative licensing system and has achieved certain results, "<Administrative Permission Law>> forthcoming. This paper intends to the meaning of the administrative license, the nature, value, etc. as discussed superficially.

The meaning of an administrative license
Theorists on the meaning of the administrative license are the following view:
1, "said empowerment" - also known as "Beneficial, said," referring to "administrative authorities according to the individual, organization, the Law allowed individuals, organizations engage in certain activities of the administrative action, usually by granting the form of a written certificate given to individuals organization in some capacity for rights or recognition have some qualifications. "(1
2, "lifting of the ban said" - means "the Administration by citizens, legal persons or other organizations to apply the Law as the Law allowed to engage in certain activities normally prohibited by the written, or oral Administration the decision." That " general prohibition, some lifting of the ban. "(2
3, "confirmed that" - refers to "the Administration's application according to the relative, according to the law have some capacity to confirm its activity. By its nature is a relative of the special recognition of the qualification, the result is that people under the law relative to rights can be achieved. "(3
This view is not entirely correct. On "Empowering said," is concerned, the ambiguity of the concept itself is doubtful whether the legal empowerment of the subject or the executive. Look at the logic, but from the text should be the latter. (4 executive gives citizens the right to legal persons, of course, to change, denial of it. It will have dangerous consequences. In other words, even if this means that legal authority, but still contributed to the executive power, powerful, positive, active total executive power give people the illusion of grace who, on the other hand, the law will lag and the general to the executive discretion of the default room for larger, if the lack of supervision and control, will eventually lead to the arbitrary Administration.

"Lifting of the ban said," is the more general point of view. It is a source of rights can solve the problem, thus avoiding similar to "empower that" the blame at the same time, but caught in a contradiction of the legal logic: for an act or matter, the law prohibits all of whom (the "general prohibition", while some of the legal and licensed by man to meet certain conditions (that is, "pArt of the lifting of the ban," which will lead to some, both prohibited and permitted the conflict situation. If <<Wild Animal Protection Law "> Article XVI" No hunting, killing of the national key protected wild animals. for scientific Research, domestication and breeding, exhibition or other special circumstances, need to capture, capture the national level to protect wildlife, it is necessary to The State Council administrative depArtment of wildlife hunting license application for license. "section to" prohibit hunting, killing of the national key protected wild animals "is a total ban on norms," ​​for scientific Research, domestication and breeding, exhibition or other special circumstances "can "The State Council administrative depArtment of wildlife hunting license application for license" is pArt of the lifting of the ban specification. in accordance with the "lifting of the ban said" point of view, the first part of the general prohibition and then lifting of the ban, meaning that in that section to prohibit the hunting of the first law killing of wildlife under special state protection, but if for scientific Research, domestication and breeding, or other special circumstances for examination and approval by the administrative authorities can obtain hunting permits. This is clearly contradictory, because the norms against norms and lifting of the ban should come into effect, not There has problems. So the only possible explanation lifting of the ban against standardized norms and common understanding, that is, except for scientific Research, domestication and breeding, or other special circumstances, for hunting and catching license, shall not for any other reason for hunting, killing of state protection wild animals. But this is clearly not a "ban that" the intent. which practice is that in most cases prohibit hunting, killing of wildlife under special state protection, but for scientific research, domestication and breeding, or other special circumstances can apply for special hunting and catching license. This is not the most cases against a total ban is part of the lifting of the ban does not exist, but in special circumstances allow.

"Lifting of the ban said," and "empowerment that" essentially no different. Administrative authorities lifted the ban before the relative, the relative rights of persons are prohibited by law, the law prohibits the right is tantamount to no rights. So the executive behavior is actually lifting the ban, "Empowering said," enabling behavior. Professor Ma Huaide also believes that the permission of both the lifting of the ban also empowering in nature, lifting of the permit may also translate into empowerment in nature. (5 "Empowering said "and the" lifting of the ban said, "is not diametrically opposed. just know the angle is different. The former emphasizes the behavior of state license status and role of the surface relative seems that the Government gives the right to engage in an act, but in fact, here that the "rights" rather than capacity is the capacity for rights, which stressed the relative behavior of people permission rights, once granted the executive relative to the rights of people to engage in certain activities shall be arbitrarily withdrawn. (6
"Recognizing that" is acceptable, but it did not completely get rid of "lifting of the ban say" shadow. "Confirmed that" the same provisions that permit a total ban on legal norms, including norms and some lifting of the ban specification that the "lifting of the ban said," The only difference lies : the latter part of the lifting of the ban is permissible behavior that results, while the former believe that the complete prohibition and licensing practices are part of the conditions for lifting the ban. Once upon a discussion of the text can be seen, the executive, according to legal norms permit should be banned and the majority of small part of the empowerment of unity, rather than "general prohibition" and "partial lifting of the ban." The difference is huge. "partial ban" means to lift the ban before the administrative body, the relative rights of people who do not, because the law is "general prohibition ", and" small part of empowerment "means that the law already gives the minority rights, only the executive can not exercise yet recognized it before. According to South Korean scholars that the" existence of the administrative licensing system, two premises: first reservations are generally prohibited, the second is forbidden exception. "(7 in here," general prohibition "can not be simply interpreted as a" general prohibition "because the opposite is generally with the exception, with the exception of some obviously not prohibited. Therefore, from In this sense, South Korean scholars that the same as "most of the ban, a small part of the empowerment" of the claim.

In summary, the authors believe that the content for the administrative license shall be defined as follows: the executive, administrative license application based on relative, according to the legal recognition of their ability to act with a certain behavior, and the law should include the majority of people Prohibition and a small number of people who meet certain criteria empowerment. the rights of citizens can only come from the Constitution and the law, the same, the Constitution and laws can limit, prohibit, deprivation of Civil rights. in the licensing system, the legal limit Most people engaged in the matter of the license rights granted only to a small number of people have that right. but the small number of people can not actually exercise that right, because he lacks the legal issues in the licensing conditions that do not have the capacity. The The purpose of review of administrative license is to confirm whether the right to have the capacity. (8 In other words, the right of the small group of people is restricted, not banned. restriction and prohibition of various so-called restriction, is that citizens have the right, just do not have the specific legal conditions that capacity and therefore can not be exercised immediately, the so-called ban, including the absolute and relative prohibition against "a matter of law if the absolute prohibition, no license, if prohibited by law relative , the parties need to lift the ban, and was executive franchise. "(9 and franchise and licensing is different.

Second, the value of the administrative licensing system
Previously discussed the meaning of the purpose of administrative license in which to explore the values ​​Yun. In the traditional planned economy to market economy in the process, the executive power contraction, increased the autonomy of market players, the executive is the owner of Evolution as public servants. administrative scheme with power color, executive orders, administrative enforcement, administrative sanctions, are increasingly strict regulation by the law, administrative guidance and other more advanced non-administrative behavior. And in the transition between the two among the administrative licensing system and demonstrates that a process of transformation:
(An administrative license is procedural rights.

Relative who can get through the administrative approval rights to Civil rights-based sex. "Civil rights according to their ability to meet all the elements can be divided into the right to vested rights and expectations." (10 of which vested legal right to all of its elements are in place, thus the actual enjoyment of the rights of the parties, and look forward with some elements of the right to only be available once all its elements are released when the actual effect may be right. permissions set of laws and regulations come into force, which prohibits sexual norms and enabling specification will come into effect. meet the statutory requirements of this part of the relative who will be permitted access to the items in the right, but the executive confirmed its capacity before the law, in which the state ought to look just right. In other words, the Chief licensing authorities confirmed acts, only the exercise of rights is a relative condition of a program only, missing the condition, the relative rights of persons not thereby eliminated. "lifting of the ban said" the basis of legal norms can be abstracted as "a ban on all human behavior, to meet the specific conditions of the people, by the executive ban. "The former is the" general prohibition "specification, which is" part of the lifting of the ban "specification. In" section of lifting the ban "specification, in essence, the law requires the executive to meet the conditions relative to lifting the ban, the law authorized the executive branch, according to the principle of administration by law, this is the obligation of the executive. In relation to this mandate, the relative position of the object is placed in power, and in the executive and the relative , the administrative organs have become the right (the main force, "permission" takes its name from, and the power (corresponding benefit, and the relative obligations of people who have become. So people get engaged in the relative permit matters the right to run as a licensing authority the power to achieve results. This right to achieve the "two phase" determines the position of the licensing authority in the middle of the substantive position. but in the "confirmed that", the law is a one-time empowerment, permission acts of organs confirmed it merely procedural conditions. The absence of the conditions is not of course lead to the elimination of the relative substantive rights of people. Therefore, the implementation of citizens without permission shall be subject to licensing matters can be divided into the form of law and substantive law : If (only without permission, then that is the form of law, if also a violation of the provisions related to denial of permission, constitutes a solid offense. (11
Procedural administrative license in two ways: First, the rights of citizens by the licensing system from the restrictions through licensing and licensing matters in the process, administrative approval is a procedural rather than substantive element element has been above above, the second is the act itself of administrative licensing procedures, "program of the means ���� exercise of licensing organ and official permission of each step and the form has a strict law, and any violation of program behavior will be subject to sanctions. "(12 in these two areas are unified. The latter is the operation of the process from the license to consider, although the exercise of power must follow all legal procedures, which is the request of administration according to law, but out of the executive power of this" Zui easily lead to corruption "and the power of fear, but the operation of administrative licensing made Ruci detailed, careful procedural regulation, licensing activities to a few near-Cheng Xu Shi combination of the portfolio program increased its status of the program conditions . Links to Research Papers Download http://www.hi138.com (two administrative licensing the operation of the executive power is not only a means, but should be a right security system.

Administrative licensing as a means of government in economic management, through the licensing system to achieve the government's macroeconomic regulation and control functions. License means of emphasizing the same time, it is natural to permit the main body (the executive and the relative placed in an unequal position, since it is means that the implementation of the licensing authority means the subject is the relative role of the means of the object - the object. the power to form a relationship with the subject. in the "lifting of the ban said" theory based on the "second stage" of the empowerment model to This power - subject relationship is more prominent, and licensing matters, the more important relative, or relative who can give more benefits, then the power - subject to the more obvious relationship. In particular, when there are competing license, permit authorities can meet the statutory requirements of several relatively free to choose between, discretion inevitably expanded, along with the arbitrariness and corruption. vertical tube in the first stage, the law carefully and in detail to the administrative licensing fortification, but permit conditions can not be made prior to the gaps in exhaustive licensing activities regulated so that the beam of a custodial discretion. as long as the licensing authority has room for discretion, it will be to consider themselves sovereign and gracious. "confirmed that" the establishment of a one-time enabling theory played down the means of the function of licensing, but that license is a legal mechanism for the citizen empowerment, as advocated by the scholars: permission "to set the legislative power of ownership." (13 laws in order to limit a particular industry, while Most people ban, only a small number of eligible people empowerment, in order to achieve the management of the community. the legal empowerment of the same time, relative to the corresponding obligations set that is not contrary to the purpose of licensing and public welfare, or we need to bear is revoked, suspended, abrogated, recovery, restrict, change the responsibility of licensing the same time, citizens, legal persons are only required to assume legal obligations, the executive has no right to assume extrajudicial duties citizens. licensing authority to run the mechanism as lubricants, strict rules of conduct established by law, to provide services relative to achieve its statutory responsibilities. any unlawful interference with the executive authorities of citizens, legal persons of the rights of all the "according to law" violation of the principle. in this empowering mechanism , the right conferred directly by the law, human rights law, while giving the relative provisions of the condition of the license. the law more specific provisions of these conditions, clearly, the right to define the identity and the easier the exercise of rights, on the contrary If the legal provisions of these terms are vague, the scope of human rights is not easy to determine. If the subjects of rights can not be determined, then the right as much as a burden on citizens in the exercise of rights, to bear the future as a result was do not have the right to determine the qualification has been withdrawn by the loss. Meanwhile, the legal provisions of these conditions, the more specific and detailed, the licensing authority discretion of the smaller room, and the discretion of the executive is a citizen's rights natural enemies. Therefore, if the law were as clear as possible on the licensing conditions, the provisions in detail, the protection of rights, constraints on the formation mechanism of power. "confirmed that" the greatest theoretical contribution is that it establishes a rights protection mechanism, In contrast, "lifting of the ban said," will be placed in advantageous position of power.

(C administrative licensing system so that the executive power to further private law
Public Law and Private Law is to build the theoretical basis of Civil law, German law is a masterpiece of pride, but there is no common law of public and private law concept is also very well the fact that the rain-delayed German offensive. This from a side also shows that the public and private law is merely a theoretical study by means of objective reality and not entirely different, no matter what, even if the Civil law has to admit the public and private boundaries are blurred reality. Public and Private Law divide beyond which the rights and powers began to communicate. "countries, the legal form through the use of private law, or directly as the main economic activity, or through state-controlled company business, thus expanding the state interventions in economic life. This private law would not have to rely on the traditional administrative authorities through the intermediary, but by representatives of state-owned businesses or companies controlled by the state directly into public life. This trend is summarized by some administrative law scholars of the 'private law' " . (14 causes generated by the administrative licensing system is complicated because of social affairs, public authority can not do everything, so have a number of services to private operators. law certain conditions, eligible natural and legal persons can be recognized by the executive authorities permission. some of the social development and people's lives have a major impact in the industry, the need for legal controls, which were included in the licensing system into. citizenship application, obtain a license to engage in the process of licensing matters, civil rights and administrative the powers of the interaction and coordinated development. such as the private sector engage in the transport industry, it needs to meet the following conditions: driver's license, transportation, financial, automotive, signed a contract with the shipper and consignee, and to protect transportation security and enter into an insurance contracts. Among the many conditions, to obtain a driver's license is just one of them, compared with other conditions, it is not necessarily more important. public power and private right combination of extensive, but not better than the private rights of citizens is more important and therefore did not like the past because of the importance of citizens special activities of citizens from a decisive. "confirmed that" the advantage: it is not the executive power in a very important position, but citizens engaged in an activity is required for a wide range of conditions only, the citizens, legal persons do not have other conditions, only apply for a permit has no meaning, and thus avoid some of the community do not get a permit The license to engage in matters of social resources wasteful phenomenon. administrative licensing system so that the depths of public power as an extension of society, according to Maxwell Bo Suoxin: China in the feudal autocratic monarchy era, despite the claim that "this world Could it be the king of soil, the rate of Could the coast of soil WANG Chen, "but the authority of the central government to the county level only dictatorship regime is the vast rural areas where the reach of public power. (15 different now, the administrative licensing system to extend to public power companies and even individuals ( applications such as mentioned above, the behavior of driver's license. expansion of public power, while at the macro level, but at the micro shrinkage, executive power is no longer business as in the past on the production, supply, sell everything, but through the permit approach to external management, giving companies maximum freedom. Therefore, in the power expansion of the right to the edge, through the emergence of the administrative licensing system integration.

(1 Haocai editor: <<Administrative Law>> China Politics and Law University Press, 1999, p. 208.

(2 Ma Huaide editor: <"China Administrative Law>> China Politics and Law University Press, 1999, p. 95.

(3 Shi Xiaojie: <<On the nature of the administrative licensing> ", in the <<legal home>> 1993 5 / 6.

(4 See Guo Daohui: <<on the administrative license is to empower the challenged conduct - on the enjoyment and exercise of the rights that the legal thinking> ", in the <<law>> 1997 11.

(5 Ma Huaide: <<On the administrative licensing system problems and Legislation> ", in the <" China Law>> 1997 3.

(6 Ying Songnian editor: <<Administrative Law New Theory>>, Founder of China Press, 1998, p. 249.

(7 Hu Jianmiao editor: <<Comparison of Administrative Law - 20 State Administrative Review>>, Law Press, 1998, p. 349.

(8 See Chen Peiqin: <<Licensing Law Probe> ", in the <<Administration and Law" "1998, No. 1.

(9 Ying Songnian editor: <<Administrative Law New Theory>>, Founder of China Press, 1998, p. 170.

(10 Zhang Junhao editor: <<Principles of Civil Law> "(revised third edition of the book, China University of Political Science Press, 2000, p. 78.

(11 forms of the consequences of illegal and illegal entities is different. The form of law, administrative authorities may require a license suspended until the re-submit for the physical law, the executive can only be undone. See Hartmut Maurer: <<administration Legal Zonglun>>, Gao Wei, translated, Law Press, 2000 edition, p. 211.

(12 Ying Songnian editor: <<Administrative Law New Theory>>, Founder of China Press, 1998, p. 271.

(13 Qiurui Hong Wang Dongfeng: <<On the Administrative Permission> ", in the <<SYSTEM AND SOCIAL DEVELOPMENT" "(Changchun, 2000, No. 6.

(14] Johnson ����÷����: <<Continental>> Knowledge Press, 1984 edition, p. 112.

(15 See Jack: <"State capacity and state power paradox>", in the Jing editor: <"State and Society>>, Zhejiang People's Publishing House in December 1998 edition, p. 20. Links to free Download Center http://www.hi138.com paper