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New Exploration of the Procedure of Administrative Legislation

Author: YangFan
Tutor: GuanBaoYing
School: East China Normal University
Course: Constitutional and Administrative Law
Keywords: Administrative Legislation Deliberative Democracy Procedures Hearings Expert Consultation Deliberative Poll Judicial Review
CLC: D922.1
Type: Master's thesis
Year: 2009
Downloads: 220
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Abstract


The Administrative Legislation refers to the legal activities and legal procedures that the specific administrative bodies, with their specific powers, in accordance with laws and legal .procedures, formulate rules and regulations. It is a kind of "quasi-legislative" activity of administrative nature. In modern society, it is an important form that the governments exercise their executive power to adjust the private fields. The "legislative nature" requires the administrative legislation that it should make democracy, human rights, public interest, etc, as the target values. Therefore, this article would like to study on how to realize democracy in the procedures of the administrative legislation of China. Starting from such a question, after analysis, I think that if you want to make clear this issue, it should study on the legal designs of the administrative legislative procedures. However, for administrative legislative procedures, at present, in our country, in the Legislative Law, Procedures to Establish the Administrative Rules and Regulations, and other laws and regulations, as well as in the legislative practices, there are no unified, detailed and sophisticated models to follow.On the other hand, when we look at the development of the theories of democracy in the world, after liberalism, republicanism, the "deliberative democracy" has become an important form to realize democracy. And in recent years, in theoretical researches and practices, it has attracted a lot of attentions. It is quiet different from the voting forms of Liberal democracy. As a political and legal philosophy, deliberative democracy stressed: Legislative participants have freedom to express or listen to a variety of reasons publicly, through a rational and serious thinking, look at the variety of reasons, and then, or to change their preferences, or to persuade others. Based on the widely consideration of the public interests, man could make the legislative deliberation on the public rationalism. That can give the legislations and decisions the political legitimacy. So, this theory brings us a new perspective to explore the form of democracy in the process of administrative legislation.After the Introduction, this article is broadly divided into four parts.The second chapter introduced the administrative legislative procedures and the basic theory of deliberative democracy, as well as the relationship between them. This part can be seen as an extension of consciousness of question of the introductive part, but also the theoretical basis of the following discuss of practical issues. Among them, in the framework of Habermas’s legal theory of deliberative democratic philosophy, in a perspective from "intersubjective validity" to administrative legislation’s "legitimacy", to explore values of the realization of deliberative democracy in the process of administrative legislation is the focus and innovation of this chapter.Chapter III, combined with the practices of administrative legislation, studies on several major forms of deliberative democracy, including the hearing procedures, the expert consultation process, deliberative poll, and so on. I put forward some new ideas that how to achieve the deliberative democracy in the process of administrative legislation, such as hearing manager’s grasp of the rules, the scope of the hearing participants, the status of experts, the steps of deliberative poll, etc. These are the main innovations of this article.Chapter IV mainly studies on how to monitor and protect the Deliberative Democracy in the process of administrative legislation. Combining the basic legal situation of China, I made this part focus on two issues—the "supervisory authority" and the "judicial review".Chapter V is the concluding part of this article, but also raised some new questions. Broadening the academic vision, about the relations between the Western democratic theory and practice of China’s legislation, I put forward my own opinions. I think: in order to answer this question, we can not simply resort to research methods from theory to theory, from law to law, and must take the path of empirical research. Combining the theoretical studies and the practices, only on this way can we really answer the question of Chinese legislation. I would like to take this opportunity to lay the foundation for my future research.

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CLC: > Political, legal > Legal > Chinese law > Administrative law
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