Program on economic law and its fair value of informal

Keywords: informal procedures, values, fairness, formal constraints

Summary: formality is not an inherent property of the program of Economic Law, Economic Law on the informal process is an important process for the realization of Economic Law has an important function of an alternative role in the introduction of an informal process of Economic Law, not only based on the pursuit of efficiency, should also consider the issue of fairness. informal procedures to protect or achieve a fair, both internal equity program participants, but also between program participants and stakeholders external equity. fair value of the abstract nature of subjectivity, mainly the realization of carrier-specific ceremony for the program is running, for which the Law must run the program for the informal setting of various forms of restraint, to protect the operation and the results of the fair.



One of the problem
Law can not do without the program running, the program has formal and informal distinction is generally considered, in relation to the operation of the field of public power, it should be stressed that the formal nature of the program. Law is to protect national Economic management practices and norms of law, Economic Law and thus Most programs are part of the formal procedures, which apply to properties with a strong legal and enforcement color, but based on conservation law enforcement resources, improve the method of practical considerations, in the modern Economic Law, procedural formality in many cases no longer then be overemphasized, a results-oriented, focusing on the concept of responsive law, or system, legislation and enforcement of Economic Law are far-reaching impact, performance is one of the specific areas or specific issues, Economic Law program The informal nature has been more and more people to pay attention, and in practice plays an important role.

The so-called informal nature of the program of Economic Law, mainly refers to the operation of economic law, law enforcement program no longer has a statutory, mandatory, application of the program, law enforcement authorities or market players with a selection of full negotiation rights for such enforcement program, we can call "informal procedures." From a practical perspective, the informal processes of economic law economic law system in the country have different levels of expression, such as the consultation process, enforcement of settlement procedures. Such procedures is often compared to the official program at the alternative position, but with distinctive features of economic law, economic law function in the realization play an important role.

Stressed the importance of informal processes, mainly to improve the economic law enforcement effectiveness, efficiency value is the primary value of informal procedures [1] [1] in the economic law, the informal process is largely based on the formal procedures of high running costs have been introduced to overcome the law enforcement process, but at the same time, the program applies to prevent too arbitrary, or against the related subjects of interest in the application of informal procedures must also pay attention to equity issues. Economic Law at the same time the introduction of informal procedures , can provide the appropriate mechanism to protect the fair operation of the program, not only about the program's own rationality, legitimacy, also related to the efficiency value can be attained.

Emphasis on the fair value of the informal process, the main purpose is to establish a set of requirements is not only efficient, but also the type of fair procedures required and this also means that the introduction of an informal process, the operation is not entirely depends on the discretion of law enforcement agencies, more than any of the informal process of running the program must accept certain rules and constraints, otherwise it will hurt the program's authority.

Second, the meaning of informal processes of economic law

Formal procedures and informal procedures criteria for the distinction, is largely procedural and application of the legal effect of general, formal procedures is the law there are strict requirements, the main economic law concerned the right to justice and to achieve specific program start order, non- mainly refers to the formal program or expand their operations with greater flexibility, the law does not set a specific mode of procedure. formal procedures generally have a statutory nature, its applicability can not be selected by the relevant body, mainly some of the custodial bundle program or binding process, is usually the main economic law must be adopted in the conduct of economic law or the procedures followed, informal procedures, the law often does not provide the specific implementation of how, which is generally flexible, mainly because some discretionary procedures or non-binding procedure, is the main economic law in certain circumstances, can be selectively adopted procedures.

From the extension point of view, the concept of economic law on the informal procedure is a general term, there is no economic law in a particular program is called an informal process in different sub-sector law, the informal title of the program is not the same specific For example, in the anti-monopoly law, the law enforcement agencies and law enforcement authorities and the consultation process between the relative reconciliation process is typical of informal procedures; in the tax laws, informal procedures are procedures for the advice of the tax authorities, tax collection in the reconciliation procedures, securities law, securities law enforcement in the informal investigation process and reconciliation procedures also are more typical of informal procedures.

Visible to the program's own property or the standard applicable to the different stages, these informal processes can be divided into three categories: First, the arbitrary nature of the consultation process, mainly to market players to law enforcement agencies or specialized agencies on specific facts or legal advisory opinion, the second is an informal investigation process, that law enforcement agencies prior to initiating a formal investigation may take summary, the three law enforcement reconciliation process, that law enforcement agencies and the reconciliation between the relative, including specific commitments relative to unilateral or bilateral reached a settlement agreement effective.

Overall, economic law, the formal process more obvious, but with the increasingly complex economic reality, in the operation of economic law, formal procedures in specific areas or specific circumstances inevitably inadequate application, the program is flexible and informal changeable, adaptable, and can be discussed, etc., which can be more timely and more accurately respond to the needs of economic reality, is conducive to the formation of more appropriate and more effective institutional arrangements, more importantly, in the field of economic law, there are more Duo monopoly, securities and other professional issues, on these issues in the prevention or resolution, compared to a strict, cumbersome, to "limit cut" the main way of formal procedures, informal procedures is particularly evident advantages, so in modern economic law, based on conservation law enforcement resources to improve the law could follow, improve performance operation of law, economic law and enhance the ability to adapt to the reality of multiple considerations, in some areas or specific circumstances, also use more informal procedure, emphasizing the informal process instead of fulfilling its functions.

Third, the informal procedures of the basic requirements of fair value

Economic law on many occasions to pay attention to the informal nature of the program's positive features, but at the same time, in order to prevent arbitrary application of the program, program participants and interested parties to protect the legitimate rights and interests, will be added to the informal procedures the pursuit of fair value. Only However, the fair itself is an abstract concept, and has a strong subjective, often, justice is hard to describe, and can only be related to body perception, therefore, informal procedures for fair protection, form only a species as a "common denominator" of the value of the expression, whether the purpose of achieving a fair, the perception of different subjects may be a difference, emphasizing procedural fairness, mainly to help protect those who are recognized as elements of fair procedures or mechanisms to absorb running process. that is that fair value is difficult to be as efficient as the result of value judgments, it is more present in the proceeding, the process embodied by the program, which requires, for the protection of the application of the fair, informal program must have a certain ritual features.

Attendant problem is that the program may be cost effective ritual, that a particular ritual or procedure adopted, tend to increase the direct costs of running the program [2] [2], and thus the efficiency of realization of the impact It is in this sense, between fairness and efficiency is often considered a certain degree of conflict [3] [3] This means that the introduction of economic law in the informal procedures, the need for procedural fairness and efficiency of between the coordination an important part of coordination is to determine which procedures need more ritual and the need for which the ceremony.

In fact, the demand for different procedures are different for equity, fair value of the implementation is not required to complete all the procedures, and thus the ritual of the different procedures should be treated differently in economic law, the informal process can be divided into two groups: is purely technical or procedures of the program, it does not involve the main interests of substantive changes, the other is related to the main interests would have a substantial impact on the physical nature of the program in the first procedure, because they do not involve the main perception, the value of efficiency is the first one, fair is not the main problem. In the second procedure, people's concern for fairness may be more than efficiency, which requires, to ensure efficiency, it should protect the interests of the relevant subjects, efficiency should be made to minimize damage as a precondition. Such The more simple the program is clearly not possible, in order to ensure fair and increase the process of ritual, thereby sacrificing some degree of efficiency, legitimacy is based.

If a more specific point of view, the entity of informal procedures can also be divided into two types: First, given the interests of the program, first, the burden imposed by the program. Two types of procedural fairness demand that there are some differences, so the program can not be ceremonial generalized.

In extending the benefits program, the results of participants in the program is beneficial. People always think, not less benefit than the benefit better, earlier access to better benefit the interests of relatively late, so people may prefer the relative ritual sacrifice some return to get the benefits determined, ie, in such procedures, the efficiency may be a fair substitute. Here, fairness is not important, if equity and efficiency can simultaneously protect, the relative need fair, but the so-called "belated justice, injustice," and very clear, the efficiency can be compared directly, fairness may be expendable. Of course, this does not mean that, given the interests of fair procedures in not important. In such proceedings, with the urgent need for fair procedures are not relative, but interested parties, because interested parties may process the relative profitability and losses. the pursuit of fairness and thus not primarily concerned for the relative , but in order to protect the interests of stakeholders. If one of the main interests of the giving of a wrong to another subject, in the process, the relative who apparently do not find it unfair, but the access to this The main interest became the third person, for him, this procedure is not fair. This requires that informal procedures must protect the interests of stakeholders, so that they perceived procedural fairness. Specific mechanisms to protect the fair, mainly in the informal procedures for the process is open, accept the challenge and so on.

In imposing the burden of the program, people have a fair demand for the most intense, most easy to feel not treated fairly. In order to eliminate people's sense of injustice, the program results to ensure the legitimacy of such procedures on the special needs of some ritual elements in the various elements, the most important thing is participation, participation can be eliminated by the relative dissatisfaction. Based on participation and on the basis of equal participation in dialogue and rational persuasion, the relative will be able to accept the burden that will produce confident and admitted that the program results thus gained the legitimacy of participating mechanism to ensure equitable principle is: the idea of ​​the relative and objections can be fully involved in the expression of a variety of interests and values ​​can be fully weighed, the final decision which is considered to be reasonable based on the given conditions and standards make the most appropriate arrangement, therefore, in itself imply the counterpart of the self-selection; there may even relative dissatisfaction, but in comparison, by participating in the formation of the decision has been greatly reduced after resistance scope and possible, because to some extent, involved in the process has to absorb these unhappy .

Informal procedures of these types of classification, in fact, a fair indication of its specific content protection. An ideal informal procedures, the procedures should allow all participants and interested parties are feeling its fairness. Accordingly, the fair should include two kinds: First, the program participants as law enforcement agencies and between the relative fair, mainly law enforcement agencies do not infringe upon the relative rights, both substantive rights, including procedural rights, and second, the program may be affected by the impact of equity between all market players, that each market players, whether as a program participant's relative, or to participate in the program among the stakeholders, should be treated fairly according to the different subjects, the second fair can be divided into two kinds: First, participants in the same market as the main program of between the fair, that is, different market players to participate in the informal procedures being the same, should be treated fairly, the second is between program participants and interested parties a fair, mainly to protect the legitimate interests of stakeholders.

Fourth, law enforcement agencies and the relative fairness between

Compared with the formal procedures, informal procedures for fair value of the first performance, is able to maintain law enforcement agencies and the relative balance between, and thus, in essence, not just in the form of guarantees of fairness between the parties. This non-fair the first tier of the formal process to pursue a fair, and most important fair.

Between the two sides a fair law enforcement, only through the process to complete the process rather than program results in any program of economic law, law enforcement agencies and the relative does not have a common interest between the pursuit of law enforcement agencies focus on law enforcement effectiveness, public interest , who is more concerned about the relative operating income, which is a market interests, but also the interests of an individual, and therefore can not in law enforcement between the two sides benefit sharing to maintain the pattern established for the fair and they can only be a fairly between structural fair, a fair bargaining power, or the fairness of legal status in the formal program, the program operation mode set by law, the law enforcement agencies have absolute command relative to the right, even if the interests of the program is to give , also has a strict application of interest to style, whether they meet the conditions of benefit to a large extent also depends on the law enforcement review, therefore, in the formal proceedings, law enforcement has essentially between the parties neither fair, nor does not have a formal fair if the relative dissatisfaction with the behavior of law enforcement agencies, generally through the reconsideration or litigation to seek a fair, but fair is fair after the recovery is obtained by means of other procedures fair, is not formally program to bring their own equity. law enforcement agencies and the relative fairness between the structural and can only be implemented in an informal process.

Informal procedures to protect this important fair is the main mechanism involved, that operation of the process, the rejection of the unilateral "command - to obey" model, by absorbing the opinions relative to the manner of consultation and cooperation procedures. In fact, all programs should have the characteristics of participation and many legal proceedings are required to apply, the applicant is a broad participation, even without the application program will generally operate more than two parties involved in the main, if not the single main program , the program actually need to be involved, but in a different program, the breadth and depth of participation is different and some involved only in form, or to type in nature, can not guarantee such participation is clearly substantial equity. Economic Law informal procedures is not to participate as a symbol of a simple program or participate in more than just attend, as observers, but participants to express their views and to draw reasonable view that stress the importance of participation in the decision to participate in itself the result is the formation of the necessary means.

Based on this, an informal program participation and consultation is always, desirable linked. Most of the time involved include two core components: First, to express their views, the second is for reconciliation.

Comment on the most basic content involved in the procedural justice theory seems, when a legal decision will affect the specific interests of the parties, these parties should have understood the relevant information for the decision, to refute a negative view of themselves, express their The right to be, which is summarized as "get a hearing" is a universally accepted principle of this principle has a long history. English common law on the old "natural justice" principles, it will "listen to the views of the right to be" (the right to be heard as a basic requirement of procedural justice, the United States "due process" one of the core issues, according to the Federal Supreme Court's interpretation is that the parties involved in their own interests in the decision making process must have the right to express their views, argue their point of view of rights.

In the economic law on the informal market, the main program is an important channel of expression, but this opinion is not only put forth their views, suggestions, but can be an equal footing in democracy, the concept of services and contracts under the influence of economic Although law enforcement in the consultation side also has instrumental value, that will help justify the results of the proceedings, to help enhance law enforcement between the two sides of the "communicative rationality" (communicative rationality, but the negotiation itself is considered an important fair value of consultation can not only ease the conflict by peaceful means to efficiently complete the law enforcement objectives, more importantly, the process itself and the democratic values ​​of equality and demonstrates other words, no matter how the final outcome of negotiations, even if the two sides consensus has been reached between, as long as law enforcement negotiations between the parties, negotiation and communication, will be able to fully show the law enforcement agencies and stakeholders on the relative position of the subject, free will and legitimate interests of recognition and respect. only this point, we can narrow the distance between the two sides Zhifa, the counterpart of the law enforcement agencies to enhance the trust, but also help build and maintain long-term stable cooperation between the two relationships [4] [4].

Consultation is to seek consensus, which is probably the result of consultations reconciliation of economic law in many law enforcement procedures, to allow the final settlement, for example, China <<antitrust>> commitment to the operators specified in the program, is a typical enforcement settlement procedures [5] [5], in securities law enforcement, the introduction of reconciliation across the board [6] [6]. reconciliation is not the protection of a fair settlement on the content of the rational, but that in itself means that both reconciliation between subjects with equal legal status, if unequal footing settlement, reconciliation is the formality of.

In summary said, negotiations, reconciliation is the proper meaning of participation, informal procedures can achieve fair value, and whether to establish participation mechanisms are inseparable, while only involved is not enough, also involved the adequacy of a certain , extensive, and therefore should try to reduce the adversarial nature of the operation of the program elements (adversary elements). In this regard, the advantages of informal procedures is inherent. confrontational full extent, it is the formal procedures and informal procedures One difference between the standard [7] [7].

Fifth, by the impact of the program between the fair market players

(One as a program participant within the main body of the fair market

Informal processes running, should not only protect the law enforcement agencies and between the relative fairness, protection may be affected by the program should also affect the fairness among all market players if the different market players are participants in the program, first within the fair among participants reflected on the fair. specifically refers to the different market players involved with an informal proceeding, they receive treatment should be roughly the same, meaning that regardless of the market as the main participants in the program who, in the informal application of the program, should result in roughly the same result, which is the second important informal procedural guarantees fair, that is the consistency of results (consistency. this fair procedure inherent in both the "consistency" features The course requirements are informal procedures in the application process must be pursued.

The results are consistent in terms of different market players, mainly the consistency of a space with the opposite result is consistent inconsistency in space, that is, in the same period, the application of the different market players with a program but produce different results. spatial inconsistencies, is an act towards the "double standard." Whether the program is to give the benefit or the burden imposed by the program, the space will be destroyed on the inconsistent behavior of market players expected to make particular sense of injustice generated relative.

Broadly, in addition to spatial inconsistencies, the informal process of the application procedure, may also produce inconsistent time Time inconsistencies on the subject for the same market, that is the same for a given non- formal procedures within the same subject at different times applied to produce different results. Despite this inconsistency does not affect the other market players, and thus will not result in unfairness between market players, but it will make the same subjects of unfair market feeling. this will destroy their sense of injustice in the same behavior is expected, not only that, it could harm the interests of market players' trust, or to produce chances [8] [8], regardless of what the results are likely with informal procedures applicable to the original intention of conflict, therefore, a broad perspective, the informal process to be pursued by the consistency of the results should also include the consistency of the time, that the same applies at different times of market players with an informal process, the the results obtained should be roughly the same.

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It should be noted that not all results are inconsistent unreasonable, inconsistent on whether space or time inconsistency, are divided into reasonable and unreasonable, because the consistency is not without considering the differences in ability and behavior based on the main or by differences in objective circumstances, legal discrimination tend to have greater legitimacy, especially for the informal procedures, which itself has greater flexibility, "specific issues and problems" is not only its inherent properties, but also The key to maintaining fitness advantage, therefore, the results of an informal agreement to pursue the program, not an absolute consensus on the space nor the time of absolute agreement, but a reflection of differences in consistency of performance is not consistent The results exactly the same, absolutely the same, but similar, the main emphasis on informal processes affect the substantive rights of the parties, this effect should be the same direction, but not on the magnitude of disparity is too large. some differences allowed, as long as this difference can be recognized by market players can be in here, the key is to make the program participants have access to psychological sense of identity, as long as the difference in a process open, informative results of the consultations under the conditions, then that is acceptable, which requires that some entity related to the interests of the informal market, the main program, program participants should be to provide an open channels of participation, the parties may put forward various ideas, evidence, ideas, experience, and of the discussion process more obvious physical characteristics, the greater the need to open, the more need for participation, consultation and even desirable.

Need to pay attention to one aspect, the results for consistency, although in terms of market players, but the essence of what it is law enforcement agencies on request. Procedural law studies show that consistency requires that the principal through a similar "cocoon" effect to prevent the exercise of public power good at breaking, so get on the consistency, no market players as, if, how to maintain the consistency of results and to maintain the consistency of the extent to which, almost entirely dependent on the behavior of law enforcement agencies in this process, law enforcement agencies need to determine it is necessary to determine the circumstances in which the different market players are the same, act the same market are the same both before and after the main body, but also to determine what results is the consistency of results, and determine where in the presence of discretion is required, so as there is a paradox: consistency was supposed to limit discretion, but the consistency and without discretion. only means to overcome this paradox is to restrict the discretion of the "degree", that is in allowing to determine, but not unrestricted judge other words, judgments or choices must be given within the law enforcement agencies have been given the discretion can only be a "weak selective discretionary" [9 ] [9] In a process for choosing the strength or range of options is the physical size of the main factors of the standard if the standards set, the discretion of law enforcement agencies at the entity level is controlled, which requires an informal program when it is established, the operation of the program can not be completely in the hands of law enforcement agencies, the whole process of running the program, law enforcement agencies are not necessarily dominant, while, as a procedural system, is not subject to any informal procedures physical standards and restrictions, on the contrary, the operation of informal procedures must accept the standard physical examination, especially those with interests closely related to the main entities of the program, despite the need for flexibility, but flexibility must be limited to the entity specified by law within the standard. For example, the anti-monopoly law enforcement in the settlement system, although on the whole, a program, the launch and operation, often require discretion of law enforcement agencies, but the procedure of the national anti-monopoly law, there are a lot of substantive content , including the conditions of reconciliation, reconciliation of the revocation of the settlement in the supervision and legal responsibility, and so on.

(B program between participants and interested parties a fair

Between the fair market players, but also as a program of market participants as the main stakeholders with fairness among market players, although most of the informal procedure will only affect people involved in the program, but in some cases, non- formal procedure will be involved in the operation of the interests of other subjects and such an informal procedure is mainly physical processes, but more for a desired type of program.

If the law enforcement agreement between the parties related to the physical benefits of punishment, the punishment is likely to be against the interests of other subjects, that this action is another non-program participants in the main body of the interests of the market. The reason this happens , mainly because of illegal acts against the interests of economic law in a compound. a particular offense may be both against the legitimate interests of other market players, it also undermines the economic order, thus violating the public interest law enforcement agencies for violations punishment, the main purpose is to protect the public, and rarely involves the private interest in this case, if the law enforcement agencies and offenders to achieve a desired, desirable place to identify the unlawful act or directly instead of punishment, it could make by the illegal against the interests of other market players have little protection. in accordance with normal procedures, law enforcement agencies who will be declared invalid or illegal acts, the contents of this formal punishment can direct the offender as a third party liability claims valid evidence. However, if the law enforcement agencies to reach agreement with the offenders, most are not recorded as desired, without the referee, the third person will be difficult to obtain appropriate evidence. Even if the agreement may be in writing, or have explicit content, but the desired content can be used as evidence, as evidence of how effective, will be controversial [10] [10].

This requires, an informal consensus-based process must be considered in the course of the interests of stakeholders. Fair value should be a system, rather than isolated between the subject-specific fair. A substantive or procedural operation of the system should be allowed to affect the interests of all subjects may be felt fair, and whether the subject is the program's participants, or stakeholders. The desired type of informal procedures, the participants in the market as the main program can fully express their views, in consultation with law enforcement authorities if the informal procedures guaranteed by the first tier of the fair can be achieved if the interests of protection of these subjects is not a problem Here is another critical need to protect important fair, that is, as a program participant between market players and stakeholders of the fair.

Informal procedures to achieve the primary mechanism of this fair is to give interested parties a procedural "right to due process" (the right to self-defense, that program is running, interested parties can present evidence, advocacy, etc. way to "defend" their interests in order to avoid the legitimate interests of their own law by law enforcement agencies and between the desired and difficult proposition. This could be done: on the one hand, requires law enforcement agencies in deciding whether reconciliation should be considered a third settlement agreement may be established due to the damage, a greater impact if the offense involved more victims, the settlement should not be allowed on the other hand, in the negotiation process, if interested, law enforcement agencies should be consulted their views, reasonable views should be adopted in order to make appropriate arrangements [11] [11].

In addition, the desired type of informal procedures in the course of the operation may also happen that the conduct in respect of settlement did not cause damage to third party interests, but to fulfill the settlement agreement will be against the interests of a subject this time, third-party interests should be protected. The most effective way is to make a limited run of the program, which called for a settlement agreement must be approved by the third party agrees to take effect only after.

VI Conclusion

The introduction of an informal process in economic law, in addition to the pursuit of efficiency-based, it should consider the issue of fairness due to the operation of informal procedures involving multi-subject, its security or to achieve a fair should also be multiple, and even in some cases will involve the public interest to protect.

Successful practice from the countries, irrespective of the informal process, most of them have some rituals that reflect the fair value of the characteristics from the system level, the ritual that is formal constraints, emphasizing the informal procedures set by law must accept to run many forms restrictions on the informal procedures of operation have a direct impact on the perception of fairness related to the subject, therefore, ritual is essential to the informal procedure, it is to protect the program is running and the main way to run a fair result.

In general, the form of constraints on the informal procedures or methods of content mainly from three aspects: first, to increase the predictability of the program, the relative protection of people's rational expectations. Especially in the desired type of program, once the agreement has been reached, then modify or revoke its limit, in addition to statutory subject matter, the law enforcement agencies may not unilaterally modify or abandon an agreement to fulfill the agreement, the second, if the conduct in question or informal procedures run to a third person may be or has caused damage, it should be allowed to participate in the third person to the program among third, through the public process to establish public defense mechanism. the practice of States on the protection of public interest is mainly achieved through the process is open , the relevant body know details of the agreement, you can make comments, suggestions, or to protect the public grounds of defense.





Notes:
[1] on the value of the efficiency of informal procedures, see my article: <<Economic Law Program and the efficiency of the informal nature of the value of>> containing "Yunnan University (Law Edition>> 2010 6.

[2] to emphasize the concept of multi-value under the program, the costs incurred to run the program generally have direct costs (direct costs, error costs (error costs) and moral costs (moral costs of the points, while the direct costs that the normal operation of the program be the cost, is to run any program will have costs. the pursuit of the efficiency of the program means that program income (including income and the process proceeds to determine the outcome of the case, to minimize the cost of running, which is the direct cost of the basic minimized. discourses can be found in my article: <<Economic Law Program and the efficiency of the informal nature of the value of>> load <<Yunnan University (Law Edition>> 2010 6.

[3] such judgments only in this sense there is a certain reason. Emphasized the fairness of course, run in direct costs may increase, but may significantly reduce the costs and moral costs of error, therefore, procedural fairness does not program will bring inefficiency.

[4] related discussion can be found in Shi Jianhui: <<administrative law enforcement in the negotiation and reconciliation>> set <<Administrative Law>> 2006 3.

[5] related discussion can be found in my article: <<antitrust problems with the implementation of the system promised incentive>> load <<Tsinghua Law>> 2009 2.

[6] Guo-related discussion can be found in Gimli: <<United States securities regulatory enforcement in the investigation and settlement system>> set editor Yang Zi Xuan: <<Economic Law Research>> (Vol. 5, Peking University Press, 2007.

[7] that the performance of administrative law in the United States very clearly U.S. law with the "informal administrative action" (informal administrative action concept, referring to the confrontational elements of the program made the lack of adequate administrative approaches. Based on this standards, the U.S. law on the informal acts include three categories: (1 antagonistic elements of a simplified example, a formal administrative ruling, you need time and space elements, and cross-examination on behalf of the interests of other aspects of the process against the set rules to ensure the adequacy of If the award is reduced or small, because it will simplify the antagonistic elements which are classified as informal administrative action, (2 antagonistic elements of weakening, such as widely used in the United States announced the development of council-style regulations, it is through a special program design, weakening the formal rulemaking process emphasized the full confrontational, so it is also known as "informal rulemaking." (3 antagonistic elements of alienation which is often reflected in the formal program with the traditional concept that is inconsistent selective technology (alternative techniques in such as regulations to establish procedures to take before the start of the consultation or negotiation of control behavior. This event will not only break the traditional rule and regulations of behavior theory to develop two points, and emphasized the traditional adversarial process elements, translated into a compromise, the concern of voluntary and consensual, and thus become a closely watched new approaches. can be found in Jiang Hongzhen: <<informal meaning of administrative action - based on preliminary comparative law perspective to start>> load << Administrative Law, "2008, No. 2.

[8] For example, in the interests of a given program, the first market players to gain access to $ 100, then the same for the second time, he will be expected to have $ 100, but in fact, the law enforcement agencies granted only to its $ 50 gain, where the trust may cause damage to the interests, while imposing a burden on the program, if the market players the first time the burden is $ 100, then he will have the same behavior just a burden $ 100 is expected, but in fact, that 100 yuan may be law enforcement agencies for various reasons (such as the high cost of the investigation, the evidence is not sufficient, etc.) for transferring the results, that is, the behavior of market players can penalty not only $ 100. In this case, if the burden of $ 100 is relatively low, the chances of market players will make the same behavior repeated.

[9] "weak selective discretionary" with "strong selective discretionary" relative. The so-called "strong selective discretion" mainly refers to the provisions of the law almost no range of choice, how to choose entirely by the law enforcement agencies, law enforcement agencies that choose very strong, very large range of discretion.

[10]例如,在美国反托拉斯法中,虽然司法部同意判决的内容可以作为第三方提起私人反托拉斯诉讼时认定被告违法的初步证据,但<<克莱顿法>>却明确否定了审判前所作出的同意判决有此效力.

[11]在这方面,我国台湾地区的具体做法是,"公平交易委员会"可以要求相对人与利害关系人达成民事和解协议,就赔偿等事宜作出约定,但执法机关本身不受协议内容的约束.参见台湾地区"缔结行政和解契约处理原则"第五条.

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