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On the Construction of Administrative Guidance System

Author: XuWei
Tutor: LiuYuanZheng
School: Ocean University of China
Course: Legal
Keywords: Administrative guidance Administrative behavior suability Trust Protection Administrative procedures
CLC: D922.1
Type: Master's thesis
Year: 2011
Downloads: 76
Quote: 0
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Abstract

Administrative guidance originated in Japan after World War II, after which an increasing number of applications for each country, generally refers to the executive through the instructions to teach and guide the way to achieve administrative purposes as a means. In China, administrative guidance is still in its infancy, but its concept in some legislation occasionally mentioned. In recent years, some local boldly carry out relevant practice and exploration, get some experience, but it also raised a series of questions. One of the most focus is located in the administrative guidance of the no force of law, no legal consequences abstract administrative behavior, so that it does not have to appeal, thus unable to protect damage due to improper administrative guidance relative to the interests of the administration. In response to this core issue, compared to Japan, Germany and the United States three related administrative guidance for the legislative situation and the nature of administrative guidance can be found in the existence of administrative guidance practice most prominent issue is not clearly identify their legal property; lack of legal basis , process control and remedies the situation, so the need to construct the corresponding system. In the system construction, first, starting from the study of specific types, the legal property of administrative guidance should be repositioned. Administrative guidance in our actions should be considered as a part of the factual circumstances and legal consequences of coercive power of the specific administrative act. Secondly, on the basis of the aforementioned qualitative administrative guidance to China can be re-defined legislation to define its form, design its principles. Once again, our administrative guidance should follow the necessary procedures, including procedures for information disclosure, public participation procedures, risk assessment procedures and implement evaluation procedures. Fourth, and most important, the right to redefine the legal nature of administrative guidance on the basis of administrative guidance system construction is the core administrative guidance improper conduct remedies, especially litigation. Abstract administrative act although non-actionable guidance, but for specific defective shall provide administrative guidance which is actionable, and in which is divided into several circumstances, including law clearly implemented by the administrative body, administrative body in accordance with Organization Act in its terms or within the jurisdiction of the implementation of the two cases; relative damage caused to the compensation shall be the burden of proof may refer to other administrative proceedings. Finally, the concrete implementation of the proposed legislation and related systems among the first in the Administrative Procedure Law and the Administrative Review Law to add on the relative means of relief, and the second is to develop in the future, \The third is a special file by the State Council promulgated policies to guide the specification.

On the Construction of Administrative Guidance System

Abstract

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