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Analysis on the Limited Intervention Happened on the Executive Power and the Private Field

Author: WangJingBin
Tutor: ShiShaoXia
School: Jilin University
Course: Legal Theory
Keywords: Executive powers The private domain Administrative philosophy Science Press University Press The Commercial Press Public interest Public authority Public and private rights Administrative rules and regulations
CLC: D912.1
Type: PhD thesis
Year: 2008
Downloads: 628
Quote: 7
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The question that the limits of the administrative power could intervene in the private sphere is general concerned in the administrative law and the jurisprudence. The administrative power and the right of the private party is a couple of core concepts in administrative philosophy, and they are the basic concepts belong to the relations between the public power and the private right in the jurisprudence. It is really necessary to define the relationships to administrative law and jurisprudence. In this paper, it tries to find the value standards and more insightful resources of theory in the jurisprudence and to find the specific thought in the microcosmic perspective of ways and means to solve the problem in administrative law. It also tries to comprehensively discuss the question that the limits the administrative power could intervene in the private sphere in the moderate aspect.The paper is divided into introduction, five chapters and the conclusion:IntroductionThis part elaborates two contents: First, the origin of the research, as well as the theoretical and practical significance of this question. Second, the analysis of the five key words set in this paper, administrative power, private sphere, intervention, private right and limit.ChapterⅠ. The value of the limited intervention of administrative power in the private sphereAdministrative power is the most active power of the public powers. It has a more frequent, more extensive and more direct impact to the rights of private party. From the crosswise division of power terms, it increasingly infiltrates into the domains of legislation and justice with the affairs managed by administrative power coming broad. From the longitudinal power exercise, the administrative power owners have great creativity and initiative in the process of implementing the law. And they can bring the law into concrete reality in accordance with the actual situations in the case. In this chapter, through progressive questioning, it focuses on two issues: First, why should intervene? Second, why need a limited intervention? About the first question, it has three justifications from the perspective of value analysis: Firstly, it can achieve the balance of interests. Secondly, it tries its best to conquer the private power’s limit. Thirdly, basing on the pursuit of the value of law, people collectively choose the administrative power to overcome the market failure.About the second question, it has three reasons: Firstly, the autonomy of civil law and the state administration penetrate and complement each other. Although the intervention of administrative power in the private sphere is legitimate and justified, but it must maintain a reasonable and proper intervention degree. Secondly, because of the dual-nature of administrative power, we should gaze at its positive effects, but also can not ignore the existence of its negative effects. In order to overcome the abuse of power and the paternalism, we should give the necessary precautions and vigilance to the intervention of administrative power in the private sphere. Thirdly, the market economy has its limitations. Its function defects are inherent. It is difficult to only rely on the market to overcome them. It has become the inevitable choice to use the "visible hand" to correct market failures. But the excessive and invalid intervention may also lead to "government failure". In this sense, it’s important to stress the limited intervention of administrative power in the private sphere. Finally, different powers have different functions. The legislative power is the best means to connect and display the public opinions. Administrative power is the basic force to intervene the public opinions, and the judicial power is to analyze, screen, judge and confirm the public opinions. As the administrative power itself is with the expansion, if without necessary restrictions, in the process of the administrative power intervening into the private sphere, once the administrative power is beyond its own duties, it is bound to lead to the dislocation and the lack of the order in the division and exercise of powers. And it also results the disorder and social discord. Therefore, as we emphasize the intervention of administrative power in the private sphere is justified; we must also emphasize the necessary of limited intervention.ChapterⅡ. The principles of the intervention of administrative power in the private sphereThe principles of the intervention of administrative power in the private sphere are the guiding principles for the administrative power to intervene in the private sphere. It’s a strict line of defense. And it provides the effective basis to specifically regulate the administrative power. This chapter highlights the five principles of the intervention of administrative power in the private sphere. These are the principle of respect for the autonomy of civil law, the principle of legality, the principle of reasonableness, the principle of proportionality and the principle of responsible administration. The principle of the autonomy of civil law has great particularity than other principles. In the broadest sense, the principle of legality, the principle of reasonableness, the principle of proportionality and the principle of responsible administration are the specific requirements about how to implement administration according to the law in the public law scope。The principle of the autonomy of civil law is the relatively sub-sector when administrative power acts in the public sphere and the private sphere. In other words, this principle is nonsensical when the power acts in public sphere, but when the executive power comes into the private sphere, the principle comes the first. The principle of legality which is the principle that administrate according to the law in the narrow sense must be complied. The existence and exercise of the administrative power must be in line with the law and must not conflict with the law. The principle of reasonableness demands the exercise of the administrative power should be objective, appropriate and in line with rationality in the premise of legitimacy. It’s the effective supplement to the principle of legality to overcome its shortcomings in lack of flexible nature. The principle of proportionality demands a certain proportion between means and purpose. We should take the realization of the objectives and the protection of the rights and interests of the private party into account. It’s the direct expression and application of the principle of proportionality that demands an appropriate proportionality between the means and the purpose. The principle of responsible administration reflects the constraints in the sense of process. It demands the administrative power’s owners bear the consequences of their actions while they enjoy the power. From the beginning of the administrative power’s intervention to the end, the five principles comprehensively play their roles, and restrain and guide the administrative power.ChapterⅢ. The scopes of the intervention of administrative power in the private sphereOn the basis of the above principles, it is a theoretical question must be solved that to define the scopes of the intervention of administrative power in the private sphere from the technical aspect. This paper deals with the delimitation of the scope in the way of absolute intervention and relative intervention. Firstly, the scopes that the administrative power can absolutely intervene in cover five: Firstly, the field of the autonomy of civil law that assured by law. Secondly, the field adjusted by moral. Thirdly, the tolerant secular field. Fourthly, the field adjusted by justice. Fifthly, the field administration is prohibited that provided by law. Secondly, the scopes that the administrative power can relatively intervene in cover three: the first, matters authorized by law. The second, fields that the rights of the private party can not achieve on their own. The third, cases that the private party violate the national interests or the public interests. Scoping is the concrete manifestation of the principles. And it is also the foreshadowing to the discussion about the ways how the administrative power intervenes in the private sphere.ChapterⅣ. The way for the intervention of administrative power in private sphereThe way for the intervention of administrative power in private sphere means the method, measure and ways that the subject of the administration bears on the subject of the private right. Certain administrative method is the concept of the external expression of certain administrative concepts, determine the choice and change of the administrative means, and then different choices will produce different results. Therefore, the research of“the way for the intervention of administrative power in private sphere”essentially follows the "idea-way-result" approach roads. Based on requirements of the market economy in the modern administrative idea of the rule of law and the legal concept of the person thinking, based on the analysis mode of "power - right" theory, it will make the modern ideas strong,such as the idea of man-fundamental, the idea of the rule of law, the idea of service, the idea of effectiveness,the idea of transparency, the idea of integrity and the idea of responsibility. Modern administrative ideas ask for the way for the intervention of administrative power in private sphere different from tradition way, and pay proper attention to both mandatory and non-mandatory method,direct and indirect method, positive and negative method, conventional procedures and emergency procedures method, burden and beneficial method,unilateral and bilateral method , beforehand intervention and afterwards intervention method to reform the way for the intervention of administrative power in private sphere . It will be a major topic which is better to achieve the object and protect the rights and interests of the private party and achieve all the values and social harmony.ChapterⅤ.The limit of the intervention for administrative power in private sphereIn the fifth chapter of this paper, I analyze the limit of the intervention of administrative power in private sphere from three aspects. First, the reality state of intervention and the second is the legitimate standard, and the third is the guarantee for intervention. The second and third points are the highlights. The legitimate standard lists six specific principles which can be operate, and they are human rights- protection principle, and values-order principle, and procedure principle, and game-interactive principle, and moderation principle, and case-balance principle. It is from the three aspects to explain the guarantee for intervention in this paper: first, protect the rights of confrontation of the private party; second, use the modern administrative idea to adapt the limit of intervention, in other words, enhance the service functions of the public power, and release authority appropriately and control over intervention; third, transform the administrative power to confirm the pluralism parties, and develop the self-government community organizations.Conclusion: The should-run trend of the relationship between administrative power and private rightsAccording to the attribute of administrative power and division of the system, administrative power represent public interests, and its social organize and service functions for public affairs will not be changed, which determines its main function area is the public life in the community, for China whose civil society is immature, the mixed state between reality situation and the theory would exist for a period of time, and it could not meet the ideal state, but small-government and big- society has become an inevitable trend, if the capacity for self-government in the private sphere of life enhanced, it is inevitable that the administrative power would withdraw from many areas, in other words, it would be social self-management and self-government solution. Before this, the front-run theory has important practical significance; it can provide theoretical support to build systems. This is the original intention of this paper.

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