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Reflection and Reconstruction of the administrative concept of the rule of law

 Reflection and Reconstruction of the Idea of ​​Administrative Rule-of-law 
 
 Abstract Chief concept of rule of law is to obey the of Goodness rules of governance administrative concept of rule of law in the process of China, also required due to the time, place, because of potential adjusted accordingly. This adjustment does not mean that the the modern administrative subversion of the concept of the rule of law, to the contrary, it reflects the vitality of the concept of social reality. In this paper attention and combing, is both a reflection of the process, but also an effort to explore its future and for the rule of administrative law. Chinese papers League finishing. 
 
 Key words】 administrative concept of rule of law supporting the concept of Reflection and Reconstruction 
 
 administrative law is dynamic, specific constitutional. [1] Administrative rule of law is the public administration to obey purpose cause of goodness rules of governance, administrative concept of rule of law the pilot and guidelines of the completion of this cause, is a set of rules system of The rule of law and the cause of a perfect social and prevent the law into a pile of mechanical, cold rules, and only know the law in order to take advantage of the Magic. [2] 
 
 from the worldwide investigation, the administrative concept of the rule of law ultimately form can be traced back to the 11th, 19th century or even earlier. As the outcome of the rule of law practice and legal wisdom condensation from social reality and the role of social reality, cause and Administrative Law toward prosperity. Today, we enjoy a wealth of ideas sages left, drawing on the valuable experience of his country, we have a responsibility to the administrative practice of the concept of rule of law in China Scene summed up, add some oil to the light of ideas, plus fire. The same time, in my opinion, the entire administrative legal system is based on several supporting concepts rooted, comprehensive, profound reflection on the concept of rule of administrative law, can not be separated from the support the concept of generalities, this article through the following ten support concept to reflect on the reason for the reconstruction of the administrative law idea. 
 
 a rule of law 
 
 law rule As an idea, the essence of law in the dominance of power, stressed that anyone - including the monarchy, the government - must be bound by the law, not allow extrajudicial privilege. [3] 
 
 In recent years, the rule of law has gradually become China's mainstream philosophy, and rose to the express provision of the Constitution Code. This of course reflects the urgent need for the rule of law, also expressed their determination to no longer relied on the rule of man and find another way. Have to admit, this is a smooth trend of the times, was a welcome change in the support of the people. Course, acknowledging our achievements, still can not listen to the negative voices are ignored, such as ) (Office) Act '[4] 
 
 the rule of law can usually form and meaning, the real significance interpretation. Form and sense, the rule of law on the legal status of the problem: the law is the law, no doubt, can not work, must be strictly enforced. Real sense,Moncler Online, the rule of law is mainly a problem on the legal standards: good laws for the governance of draconian illegal, people should only obey goodness rules of governance. Legal Why sum makes sense to make life difficult, Although we are in a formal sense, the real meaning there are some problems, However, academia seems more likely to come from the form of concerned about the development of the rule of law, to strictly enforce the absence of the system of legal norms as a rule of law obstacles. [5] However, from formal theory, at all times and all countries, such as the draconian laws of the Qin Dynasty, recent German fascist dictatorship, not a bad idea as a country ruled by law. The current rule of man outside to find another rule of law, should not be putting the emphasis on the formal sense, otherwise we pursue is still not a true rule of law, but rather the rule of fur. This is one of the reasons. 
 
 Second, the incompleteness determine the limits of reason and the weakness of human nature, and thus decided to develop the method can not fully meet the aggregate law of aggregate demand standards. At the same time, the legislative mechanisms are not always reliable, the result of the game between the discrete interest groups may not be able to reflect the true will of the people. [6] stressed Act is Therefore, implementation of the rule of law only in the formal sense, is tantamount to cede sovereignty in right and wrong and good and evil are uncertain 
 
 so, the paper emphasizes the first question is: today to promote the rule of law, can not be not in the formal sense, special attention to the real significance on the rule of law. [7] from the real meaning theory, law from justice, [8], rather than from legislators. [9] [10] Only first solve the core problem, in order to achieve the distinction of the rule of man and the rule of law, and has truly embark on the road of the rule of law. So, the real sense of the rule of law, can not see it as a form of the rule of law after the state, can not be caged and system of the blend together with the form of the rule of law. Mechanical understanding of the form of the rule of law is a necessary stage of the substance of the rule of law, the front stage is simply the form of the rule of law and the substance of the rule of law as a consistent lack of constructive value. Real sense of the rule of law must be emphasized, and must be emphasized in the beginning of building a rule of administrative law, the only way, the rule of law and the cause is not stagnant or going astray. 
 
 two, the unity of the legal system 
 
 thought, there is no lack of the rule of law Observed worldwide uniformity of law Ron Fuller through his famous The Fuller Accordingly derived eight principles of the 
 
 can not deny the the legal unity positive role: it is [13] Lenin pointed out that: emphasize its positive value at the same time, we should not ignore it in practice reveal side effects: first, our Constitution explicitly put forward the legal unity The balance of the national conditions around geographical conditions, customs, economic base differences mechanistic understanding, and thus determine the uniformity of law Secondly, even without considering the special circumstances of our country, in the general case, the degree of diversity of the legal system often and justice For example, the Not really. Justice has a Proteus-like face, fickle at any time was a different shape, and has a very different look. When you in-depth understanding of local realities, tradeoff analysis of various conditions, the parties expect empathy, perhaps you will think that the so-called The reason is that the Third, mechanical stresses the unity of the legal system will lead to legislative power is too concentrated, and local legislative powers useless. The origins of administrative law, the so-called laws, administrative regulations, local regulations, departmental rules and regulations, local government regulations, it seems that the However, the and operational, they are often copy upper law, or some refinement, 
 
 Reflection and Reconstruction on the The basic idea is: to pay more attention to the different treatment not mechanical unity, but the unity on the basis of appropriate flexibility; than a simple, unified, but respect the unity in diversity premise; than the unconditional unity, but the unity of rational analysis. 
 
, administration 
 
 concept of administration according to law in China, has become the general consensus. In accordance with Tong said,hollister pas cher, more emphasis on the running of administration should be based on the law and not in accordance with the policies or no basis. This focus on the formal sense, understand and use At the time, the But then, people aware of overly strict restrictions Administrative Law evil spare,hollister shop, virtue, therefore gradually transform the connotation and denotation administrative activities, leaving more space. Although our country is still in the start-up phase of the rule of law, the situation faced by: (1) social transformation, national recovery mission asked the Government to take on more responsibility; (2) the task of building a service-oriented government asked the Government to provide as much public services; (3) the rise of the administrative state has become a common trend in the world. In this context, only emphasized the narrow sense of administration according to law, either the lead administrative infinite atrophy, or lead to the unlimited expansion of the law. So, we come to understand and use, 
 
 First, administration according to law connotation from However, there is no legal basis for the administrative activities, we should not simple be denied. For example, through administrative contract obligations to fulfill their obligations in accordance with the contract, and that purposes, that category. 
 
 administration according to law, This view is based on an assumption: the only representative institutions can truly representative of legislation. In fact, legislators often generated through indirect democracy, they may not be able to represent public opinion. In addition, with the national government requirements increased administrative activities is bound to increasing number of legislators of all administrative areas of legislation, legislation or some highly specialized management issues, not realistic. In view of this, the . [17] This transformation of ideas, dilute the focus of the legal hierarchy of administration according to law, Release legislative power, the need to strengthen the control of the quality of the law, including the Law on the Establishment of substantive law as standard procedural restrictions, and to strengthen the review and oversight mechanisms, not up to the standards of the legal norms can be filtered in a timely manner out. 
 
 Third, the administration according to law On the one hand, a lot of administrative affairs by the executive transferred to social organizations, these social organizations may also become the main fact engaged in administrative affairs entrusted way; On the other hand, more and more administrative matters require administrative body and administrative counterpart jointly with a public transfer of power to the relative problems. 
 
 
 power and control of 
, power control, is controlling, it is a basic proposition of administrative law. Of course, some people may criticize this judgment rigor, in their view, controlling not only is a basic proposition, and basic (or fundamental) the proposition. In fact, since modern times, especially in the freedom of the era of the rule of law country, controlling theory been guarding administrative law, according to the mainstream, the other point of view or theory, or even difficult for the theory of controlling the impact or threat, it is no wonder that the controlling Theory those who have enough self-confidence. 
 
 controlling as administrative law, only the center of gravity in the era of laissez-faire capitalism, the reasonableness of its history, but this concept can not fail to add arguably still in use, nor can arguably enter China. As mentioned the beginning of this paper, the rule of administrative law is a purposeful career, commodity and market economy development,longchamp pas cher, legal reform movement, bourgeois revolutionary movement and the national liberation movement's emergence, these social needs to control the value of the right to unlimited enlarge until you become the most dazzling pearl in the crown Outside in the passage of time today, controlling commentators surviving confident, has a controlling point of view in addition to the criticism of the government and the resulting natural moral superiority, which tenable argument? 
 
 point of view, from the relationship of the powers and rights and powers of strength, but is essential for the protection of rights must be controlled in order to protect the rights and the powers. Two parts of this formal contradiction in fact there is no inherent conflict, because even the most extreme liberals - before he became anarchists - all have to admit: If there is no power, justice, the lack of guardianship rights will there is no guarantee the state will not be able to become the country; Furthermore, if you do not have enough power to bear the protection of the rights and obligations of the government only on crutches hobbled Line, the rights will not be able to be fully protected. Visible, if not simply the imaginary powers for the rights of the enemy, we should agree that However, but controlling commentators observed all the issues discussed on the basis on controlling, Is the entire contents of the administrative law exists only this you? For example, by the impact of the financial crisis employment of college graduates to the requirements of the labor and social security departments to arrange the work, the typical administrative law problems controlling theory can be used to explain this? Obviously, there is no mandate the protection of the rights of the obligation can not be obtained from the Government; without full authorization, we can not fully obtain the protection of the rights of obligations to the Government. Licensing issues, that is, 
 
 controlling specific times and under specific conditions, or can cover the basic administrative law, but it is only in the ahead of its time and beyond the abstraction of the environment. For example, service-oriented government and the resulting benefits administrative, must use Therefore, in order to reveal the nature of administrative law, it is necessary to break through the limitations of controlling theory, abstraction above the In my opinion, this problem can be summarized as It has two aspects: First, sufficient administrative subjects must be given terms of reference to enable them to execute the will of the sovereign, so that public policy must have sufficient means to prevent administrative the main deviation or departure from the will of the sovereign was really put; or public policy. Administrative law in order to achieve the purpose of protection, on the one hand must be fully authorized [19] On the other hand must be controlling. All in all, 
 
 five administrative act 
 
 . Administrative action in accordance with the definition of Otto Meyer, specific events to make a decision by the administrative organs of the relative superiority of their rights declaration. This definition still has a decisive impact, so that the [20] 
 
 However, with the the social freedom rule of law in the country to replace the rule of law country, limited positive administrative replaced entirely negative administrative, we can no longer take the role of the executive power is called the power behavior, rather it should be called acts of public service official act, because it is the behavior of organizations and to meet the public need to promote the physical, cultural, spiritual and moral development. [21] As a result, in addition to executive orders, administrative enforcement contour rights violations, contains the spirit of consultation and cooperation between the administrative body relative administrative guidance, administrative contracts and flexible administrative pushed to the front desk. Flexible administrative means the exclusion of the rigid administrative means . However, for a long time, scholars The same time, in order to explain the objective flexible administrative means, they have to . This trend makes administrative law is concerned about the lack of flexible administrative means - legislation on flexible administrative means almost zero. At the same time, the situation in the administrative practice also had a lot of adverse effects: administrative subjects in select administrative means, more than considering the nature of the administrative affairs and needs administrative purposes, but considering what administrative means legal norms to evade or avoid becoming defendants in administrative proceedings. Thus, the distinction between administrative acts and non-administrative behavior, evolved into a distinction between the administrative subjects commitments and how liable. 
 
 Therefore, I believe that the concept of The so-called and including sanctions sex; includes not only just sex, but also flexible behavior. In short, it is the administrative subjects for administrative purposes, or based on the needs of the public administration are all acts done or to take all measures, means or method. [22] only in a pivotal position in the administrative law administrative acts defined Zhou Yan, government activities and responsibilities seamless connection that has the possibility of internal integration of the administration and the rule of law that has the possibility. 
 
 six rights protection 
 
 Needless to say, the concept of rights protection exists in all the space of the rule of law in the administration, even in an emergency, people still executive power whether the infringement and the extent to infringement of rights as the primary content of the discussion. However, about the concept of protection of the rights of the rule of administrative law, it would need to be noted in the following areas. 
 
 first, the protection of the rights and powers of control is not the same. In the field of administrative law, people tend to be the protection of the rights and controlling, and two coins positive and negative control of power is to protect the rights and vice versa. Habits combine this view with strong administrative law right to regulate, easy to make the protection of the rights of the idea of ​​not being taken seriously. More important, Regarded as one of the tendencies of the protection of the rights and powers of control, is not only wrong, but also harmful effects greatly. 
 
 Second, the concept of supply and resource supply with coordination. Rights protection, the strength of the concept of supply is relatively large, the results are obvious. But only the concept of supply is not enough, the realization of the right to have a certain amount of resources as the basis of these resources, including the systems, mechanisms and instruments. To this end, we should pay more attention to creating a variety of conditions conducive to the realization of rights, development and the development of the concept of supply coordinated resource supply. 
 
 third, advocating the concept of protection of the rights but also to increase stressed obligations consciousness. Rights, obligations, rights and obligations agreed to say is a very theoretical depth insights ... to achieve from a legal point of view, a social reason why the need to use some kind of force to ensure the implementation of laws, mainly not that people do not consciously exercise their rights, but because these obligations are refused. In this situation, the people interested in chasing the rights but shied away from the obligations, the right to the final only to become empty slogans. 
 
 seven, due process 
 
 Luhmann once said: two system play a magical role in a social or private law contract, another program in the areas of national or public law. Some people think that the main achievements of modern democracy and the rule of law are brought about due process. This statement there was a slight exaggeration, but enough to illustrate the value of due process. 
 
 known as In theory, we stressed that the program independent of the value of into the Code, the rules of due process in administrative activities play a decisive role. These efforts should be sure, but one can not ignore the fact that the emphasis on procedural value: We did not seem to take into account the program's performance problems. 
 
 In the past, we do not talk about the program, and now not only talk about the program, the difference between before and after is whether to recognize the independent value of the program. If sublation attitude towards the tool theory point of view - rather than simple denial - it's at least make people pay more attention to the effectiveness of the program, more concerned about whether it is The drawbacks of the program based on the program performance issues tend to emphasize the independent value mask. For example, do a fire In the case of the results of the established merely for superficial, seems to respect the due process of independent value, but in reality, due to the loss of the foundation of the performance and set the value at the castle in the air above. For this reason, it is necessary to put an end to ideologically value and performance against the tendency to change the practice of the expense of emphasis on value and set performance but also in practice. Value and effectiveness of each role: the emphasis on . Only to unify the two, they are not to fall into the care of this loss of his dilemma.