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Administrative Guidance under Administrative Rule of Law

Author: LiuHuaWei
Tutor: QuBo
School: Changchun University of Science and Technology
Course: Constitutional and Administrative Law
Keywords: Administrative guidance Administration according to law Rule of law, administrative Malpractice Perfect
CLC: D922.1
Type: Master's thesis
Year: 2008
Downloads: 169
Quote: 2
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Abstract

Administrative guidance is a new mode of administration management which appears as the development of market economy and democracy, and is becoming a important means to administration of modern government. With the rise of modern welfare state and service administration, non-coercive forms of administrative actions are popular with governments in the world. Administrative guidance has been using widely in a lot of countries. It remedies the legislation deficiencies by its softness and agility. Administrative guidance plays an important role in cultivating equality and democracy.It is a focus of the validity of administrative guidance due to absence of sustain of administration substantiality law to many administrative guidance. Many scholar consider that the concurrence of administrative guidance according to law and policy is the available complementarities to traditional administration according to law. This paper discuss the subject about administrative rule of law through the analysis of conflict between administrative guidance and traditional administration according to law, and point out that administrative rule of law is the tendency of development of theory of administration according to law, and the basic of theory of validity of administrative guidance. In the current process of ruling the country according to law, to define and regulate administrative guidance scientifically, to achieve legitimate administrative and reasonable administrative, procedural due, efficient convenience, honesty, trustworthiness, accountability unity, we should further study the relations of the administrative guidance and administration according to the law, and administrative guidance to the path of the rule of law.This paper separates into three parts.The first part is“General Theory of Administrative guidance.Firstly, this part retrospects the birth and development of administrative guidance, and brings forward the realism basic of development of administrative guidance.Moreover, the concept and nature of administrative guidance is analyzed emphatically. For administrative guidance, the concept ties up the character without fail. This part begins with the analysis of character of administrative guidance, and gives the definition of administrative guidance on base of summing up the character of administrative guidance. With regard to character of administrative guidance, there are many parlances in the academe. The author considers that administrative guidance is a device of unilateralism idea expression, not acceptability, and is a device of law, not reality, and belongs to category of administration device; and that administrative guidance is an authority form of administrative device, not a non-authority form of administrative device.Finally, classify and the corresponding significance of administrative guidance according to different standards is expatiated in this part.The purpose of this part is that administrative guidance should be understudied comprehensively and profoundly through explanation about some basic ideas of administrative guidance and carding about some disputable question.The second part is“Administrative guidance of Adaptable Administrative Rule of Law”. This part is the important content of the paper. This part discusses the subject about administrative rule of law through the analysis of conflict between administrative guidance and traditional administration according to law, and point out that administrative rule of law is the tendency of development of theory of administration according to law, and the basic of theory of validity of administrative guidance.Firstly, this part expatiates what is traditional principle of administration according to law, and points, and points that the largeness application in fact in case of absence of substantiality law is a concussion to theory of traditional principle of administration according to law, not only a supplement to traditional principle of administration according to law.Secondly, based on the analysis of conflict between administrative guidance and traditional administration according to law, this part points out that administrative rule of law is the tendency of development of theory of administration according to law. From the following four aspect: background of administrative rule of law、meanings of administrative rule of law、relation between administrative rule of law and administration according to law、evolvement from administration according to law to administrative rule of law, this part discusses the theory of administrative rule of law detailed, and considers that the translation from administration according to law to administrative rule of law is the translation form law to substance law, and is tendency of development of management of nation by rule of law in field of administration.Administrative rule of law requires device of administration is not only based on the static statute of law, but also abided by the alive law and the concept of law scrupulously, which includes the spirit of law such as human rights、freedom、equality、dispassion、justice and so on. Administrative rule of law is a thought, a state, a process. Relative to administrative rule of“human”, administrative rule of law has differences with administration according to law, because of its substance and pursue to value contain the more abundance concept and more modern content. Administration according to law is only a half-baked proposition of administrative rule of law, and it is far from sufficient for us to emphasize administration according to law only. Though it is necessity that administrative rule of law requires administration according to law, only administration according to law can not be equal to realization of administrative rule of law.On basic of discuss to theory of administrative rule of law, bring forward administrative rule of law is the basic of theory of validity of administrative guidance. At the same time, by discussing on consistency in concept between administrative guidance and modern administrative rule of law, we find out the support in theory for abound and abroad in application of administrative guidance in reality, and more, we find out the support in theory for rationality of existent of administrative guidance.The third part is“Establish of Chinese Administrative guidance by Administrative Rule of Law”. This part separates to two segments.The first segment points out the question exist in administrative guidance of our government, and analyses the cause of formation of these question.For the question above, on based of analysis of theory of administrative rule of law by preamble, the second segment perfects the following two aspects: innovation of system and consummate building of legal system. For innovation of system, we should transit our traditional concept、strengthen the building of system and innovate system; for consummate building of legal system, this paper provide perfect advice in the three aspects: building of substantiality law、building of procedure law and share in responsibility of administrative guidance and founding of responsibility mechanism.

Administrative Guidance under Administrative Rule of Law

Abstract

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