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Administrative regulations in the legislative system of the positioning analysis

Author: SiZuoJie
Tutor: LiuHuiRong
School: Ocean University of China
Course: Constitutional and Administrative Law
Keywords: Administrative rules and regulations legal validity reference
CLC: D920.0
Type: Master's thesis
Year: 2008
Downloads: 89
Quote: 1
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Abstract


Any system formation, all is the result which the social transformation and the thought renew, the administrative rules and regulations production and the development also is so, its appearance is each kind of society needs the combined action the result. In the capitalist economy development process, is following the government function transformation, the people have also had the radical change to the administrative legislation idea understanding. In has undergone after the big disaster which the market malfunctions and causes, the people intervene the economy from the opposition government to transfer believe the government, the trust executive power, therefore, the national administration function strength is greatly the expansion. But the country under the rule of law emphasized the government all authorities must take the law as the basis, all compulsory activities which the government adopts, all must have the legal frame which stabilizes also continues, but is precisely this kind of frame can cause personally when the formulation plan holds certain degree the confidence, moreover also can reduce the artificial uncertainty as far as possible. At the same time, the domestic international struggle day by day complex and the science and technology daily progress also brought the management aspect huge change, the parliament and so on the generation discussed the organization the function to be on the decline day after day, is unable to satisfy the management the new characteristic, the new change, could not but the legislative power redistribution, the shift state power, remold Organs of state power. Therefore, the administrative organ obtains the legislative power from the legislature hand to become inevitably. But in our country, the administration rules and regulations has the special history and the special national condition, its status is also more special. Our country’s legislation theory and the legislation practice receives former Soviet Union’s influence since long ago, thought the legislative power only can exercise by National Highest organ of state power. Obviously, this kind of legislation theory and our country reform and open policy later legal system actual has not tallied. Therefore, the administrative rules and regulations took legal and the administrative vicissitude product, responded the national condition need, is to the sole legislative power emaciated one kind of atonement.The administrative rules and regulations are in our country legal framework quantity most one kind of regulated documents, it took the government by law the constituent is playing the pivotal role in the government by law practice, although our country "Legislation Law" and so on many related laws had all stipulated the administration rules and regulations, took in our country form significance the administrative rules and regulations are as if clear may distinguish, but, this has only solved the administrative rules and regulations legislation partial system stratification plane problem, the administrative rules and regulations theory stratification plane, the technical stratification plane and the idea stratification plane question by far has not been solved. Therefore, not only in our country government by law construction important time, we needs from the administrative rules and regulations main body, the basis and the name these logic constitution aspect limits the administrative rules and regulations the concept, needs to discuss the administrative rules and regulations the nature and the potency.About is the rules and regulations nature is the rules and regulations a law, is always the educational world argument question. Although our country had many administration rules and regulations question, but still could not confirm its legal status and the status. Even if promulgates after "Legislation Law", whether the administrative rules and regulations did belong to the legal form still to have the anxiety and the dispute. But, everybody argument is not the fact question, but is a value question. Therefore, we must face the reality, the acknowledgment administration rules and regulations are the law. Thus takes it as the trial in the administrative proceedings the basis.Not only the administrative rules and regulations have the standards, the universality formally and compulsory and so on method the basic characteristic, moreover, the administrative rules and regulations formulation took specific Country Administrative organ utilizes the legal authority, formulates and the issue according to the legal procedure has the universal binding force administrative regulated document the important way which to the social economy, politics, the culture and even social life intervenes, its essence is to the administrative main body and the administrative relative person rights and obligations establishment and the assignment. But the modern legal relationship content is precisely the right and the voluntary determination, this achieved the mutual recognition in the educational world. Not only that, the administrative rules and regulations social function day by day is also prominent. With the law, the laws and regulations compare, not only administrative rules and regulations holds the absolute superiority in quantity, becomes is suitable rate the highest regulated document in the administration activity. Moreover, the administrative rules and regulations own have merits and so on timeliness, flexibility, materiality have also made up legal, the laws and regulations insufficiency. At the same time, the administrative rules and regulations control scope has not limited to the administrative relations domain, increasingly steps in certain civil laws domain of until the basic human rights question. Is only in our country, because the administrative rules and regulations image is not good, the law circle always bore a grudge to the administrative rules and regulations legal status, has caused the legislation and the judicature to the administrative rules and regulations potency suspicion was the court when the trying administration case only energy "the reference" the rules and regulations, the administrative rules and regulations legal status therefore also throughout had the uncertainty, but we could not because a thing had some problems, denied the objectivity which its society needed, thus denied the value which its should have. Also cannot because the administrative rules and regulations have like this such disease, artificial blurs its attribute, blurs its lawsuit significance. Actual with must have the huge difference, therefore, already has besides the summary the research results, should take specially the administrative rules and regulations nature and the potency knew again, the reconsidering administration rules and regulations value function, in view of the administrative rules and regulations negative effect, based on the native place angle of view, and profits from the Western developed country the surveillance mechanism, pointed out at present supervises the mechanism existence the question, thus consummates our country administration rules and regulations the surveillance mechanism, by this realization administration rules and regulations legalization, maximized realization to human protection.

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