Administrative Law (bilingual ) Dr. He Chen [e-mail]

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Administrative Law(bilingual )Dr. He
Chench1797_at_sina.com
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Chapter 1 Introduction

• Basic Terms
• Basic Principles of Administrative Law
• Sources of Administrative Law
• Development of Administrative Law

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1.1 Basic Terms

• 1.1.1 Administration
• Instead of general administration, the
  administration in administrative law refers to
  public administration, that is, the organizing
  and management of public affairs by state organ.
• Administration is the organizing agency of the
  state.

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• The goal of public administration is to realize
  public interests, to maintain public order and to
  enhance public welfare.
• Therefore, the state administrative organization
  enjoys certain privileges and can adopt the
  measures that are exclusive to common organizing
  and managing practice.

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• For example
• Order an enterprise to perform certain duty
• Give punishment to those who violates the order

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• Administration Constitutionalism
• Constitutionalism has 3 main points
• The division of functions in state organs (checks
  balances)
• Protection of civil rights
• Limitation of governments power

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• The state organs which is organized by popularly
  elected representatives is the supreme organ of
  state power (legislation organ).
• The will of the public is embodied through the
  laying down of the law and the government is
  under the law. (rule of law)
• The public administration after the division of
  function has the feature of subordination (all
  administrative practice is subject to the law).

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• That we here highly resolve that these dead
  shall not have died in vain that this nation
  shall have a new birth of freedom and that this
  government of the people, by the people, for the
  people, shall not perish from the earth.
• Gettysburg Address, Abraham Lincoln, 1863

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• ???????
• http//you.video.sina.com.cn/b/17500293-1343881957
  .html

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• 1.1.2 Executive Power
• The rights possessed by state administrative
  organs to execute legal norm and administrative
  practice.
• In modern society, executive power has quite
  broad content, including administrative
  legislation, administrative enforcement of law,
  administrative judicature, etc..

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• Compared with other state power, executive power
  has the characteristics of initiative(???),
  universality(???) and discretion(?????).
• Compared with the rights of individuals and other
  organizations , it is compulsory(???),
  unilateral(???) and privileged(???).

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• The duality of executive power
• On the one hand, it plays a positive role in the
  maintenance of social order
• On the other hand, it would play a negative or
  even destructive role without certain
  restrictions based on principles and procedures.

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• Case study violent remove

?????? ?????????? http//tv.people.com.cn/mediafil
e/201003/06/F201003061737412827535119.swf
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• The power free of restriction and control
  certainly will lead to corruption.

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• Executive power Civil rights
• Civil rights refers to citizens autonomy,
  interests, freedom and capacity.
• It includes political rights and freedom,
  religious freedom, personal freedom, social and
  economical rights, the right of education, the
  right of accusation, and the right of suit, etc..

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• Executive power, origins from civil rights, is a
  kind of special transformation mode of civil
  rights.
• Citizens own organ of power is created by their
  election and then divides executive power from
  uniform state power, then government is formed to
  execute this power.

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• 1.1.3 Administrative Relation
• Social relation which occurs in the course of the
  execution of executive power by administrative
  organ.

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• Includes
• The administrative management relation between
  administrative organs and citizens, legal persons
  or other organizations.
• The functions and powers relation between
  administrative organs and the administrative post
  relation between administrative organs and their
  staff members.
• The supervisory administrative relation between
  administrative organs and other state organs,
  social organization and individuals.

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• 1.1.4 Administrative Law
• Is sum total legal norms on the adjustment of
  administrative relation.
• How to understand?

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• The goal of administrative law is to realize
  administration by law in order to validate the
  administrative legal order that with the
  peoples interests and will.
• Administrative law is the law to regulate
  administrative organization and executive power,
  and it is also the law to remedy the aftermath of
  the exercise of executive power.

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• 1.1.5 Classification of Administrative Law
• Firstly, norms on administrative organizations
• Secondly, norms of conduct, which are the
  broadest, the most numerous, and the most
  complicated
• Thirdly, norms on the supervision to
  administration.

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• 1.1.6 Features of Administrative Law
• 1.1.6.1 Formal features
• A) There is no uniform and integrated code for
  administrative law.
• Broad field of society complex content high
  technicality difficult to make an all-inclusive
  and uniform administrative code.

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• B) The number of the legal forms, legal form and
  legal document that are essential for the
  existence of administrative legal norms are all
  specially large.
• Administrative law belongs to multilevel
  legislation, so both authorized state power
  organs and authorized administrative organs can
  make the law.
• It is different from civil law, criminal law and
  etc., which are usually made by supreme state
  power organ.

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• 1.1.6.2 Features in content
• A) administrative law possesses quite broad
  content.
• It is not only confined to traditional public
  security, military, tax affairs, diplomacy, but
  also includes business, food, sanitation, health
  care, environment, labor service and social
  welfare, etc..

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• B) administrative legal norms that appear as
  administrative rules and regulations are mutable
  and less stable.
• Administrative activities are adapted to social
  development.

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• C) the substantive norms and procedural norms are
  usually interlaced with each other and coexist
  within one legal document.
• In administrative relations, for the requirement
  of equity, science and efficiency, it is
  necessary for the state to prescribe certain
  procedures for administrative organs in the
  enforcement of authority.

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1.2 Basic Principles of Administrative Law

• The basic principles of administrative law are
  the fundamental rules that direct and regulate
  the legislation and implementation of
  administrative law, the enforcement of
  administrative act and the treatment of
  administrative disputes.
• They are the guideline that reflect the basic
  values of administrative law and run through the
  concrete regulations of administrative law but
  higher than the concrete regulations.

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• 1.2.1 Responsibility of administration principle
• It is the basic requirement to realize the
  administration ruled by law and is the foundation
  of administrative law.

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• 1.2.1.1 the meanings
• Responsible administration means that state
  administrative organs shall be responsible for
  their administrative activities.
• If administrative activities can arbitrarily make
  influence and need not to undertake
  responsibilities, the interests of citizens and
  social organizations will be greatly threatened
  and the whole society will be endangered.

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• 1.2.1.2 the content
• There shall be responsibility where there are
  administrative activities.
• Requires definite subject.
• Requires the establishment of the legal system of
  responsibility, such as administrative litigation
  system, reconsideration system, and compensation
  system.

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• 1.2.2 Lawfulness of administration principle
• 1.2.2.1 the meanings
• It means that administrative organs shall abide
  by the law.
• The law regulates the authority limit, methods
  and measures of administrative organs activities.

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• What does the term law mean?
• It can be understood either in broad or in a
  narrow sense.
• Now it not only refers to the law made by organs
  of state power (congress), but also includes the
  law made pursuant to authorization under the
  presupposition that these administrative
  regulations do not at variance with the law.

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• 1.2.2.2 the content
• Administrative activities can only be conducted
  in a legal scope
• Administrative acts must be in accordance with
  the law, including certain fact, legal authority,
  and legal procedures.

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• Case study entrapment in Shanghai
• Entrapment claimed in seizure of 'black
  cab',17th Oct, 2009, Shanghai Daily

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• A Shanghai company said yesterday that one of its
  drivers was entrapped by traffic authorities
  investigating illegal cabs.
• Similar allegations have been raised by other
  drivers who claim the traffic watchdog, which is
  in the midst of a two-year crackdown that has
  generated millions of yuan in fines, used bounty
  hunters to manufacture false evidence.
• In the latest incident, the driver was so
  disturbed about the allegation that he cut off
  part of a finger in a misguided attempt to prove
  his innocence.
• The company said Sun was innocent and claimed the
  19-year-old was set up by the traffic team on a
  charge of operating an unlicensed cab after he
  picked up a pedestrian who asked for a lift.

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-1413384995.html)
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• 1.2.3 Reasonableness of administration principle
• 1.2.3.1 the meanings
• It means that the content of administrative acts
  shall accord with legal rationales such as being
  objective, within certain limits, and being fair
  and just.

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• Any law ,especially the laws that specify
  administrative activities, has its limits.
• The law is impossible to specify all
  administrative activities, and the regulation of
  the law on administrative activities are
  impossible to be exhaustive and reach every
  aspect, so administrative organs need to enjoy
  certain discretion.

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• 1.2.3.2 the content
• Administrative acts must be in accordance with
  legal goals
• The motive of administrative acts shall be
  reasonable
• Administrative acts shall take related factors
  into consideration
• Administrative acts shall be just

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• What is justice?
• A common requirement of the society. Dose it has
  objective criteria?
• Equal cases shall be treated equally
• Principle of proportionality
• The convention shall be abided by
• Administrative organs acts shall be consistent

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• Case study????,?????
• ???????2000?9?13???

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1.3 Sources of Administrative Law

• Sources of law refers to the form in which way
  the law exists. It is the origin or the source
  from which the legal norms of different
  departments come from, that is, the carrier of
  laws.

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• Generally speaking, the sources of administrative
  law in China include the constitution, laws,
  administrative regulations, departmental rules,
  local regulations, regulations on the exercise of
  autonomy and other separate regulations of
  autonomous regions, and rules of local
  governments, etc..

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• 1.3.1 Basic sources of administrative law
• 1.3.1.1 Constitution
• As the fundamental law of a country, constitution
  is not only a source of administrative law,but
  also sources of other legal department.

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• The administrative law norms in constitution are
  as follows
• Norms on basic civil rights and obligations, such
  as the right to criticize, and make suggestion,
  the right to make complaints or charge against.
  Citizens of the PRC enjoy freedom of speech, of
  the press, of assembly, of association, of
  procession and of demonstration. No citizen may
  be arrested except with legal procedures. The
  right to work, receive education and social
  security and the norms on duty to pay taxes, to
  observe by the law and public order and to
  respect social ethics.

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• Norms on the organizing, basic working system and
  authority of government administrative organs,
  such as norms on the basic function and power of
  ministries, commissions and auditing organ under
  the state council, the norms on the organizing,
  basic working system and basic authority of local
  governments at different level, etc..

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• Norms on basic principles of administrative
  activities, such as the principle of peoples
  participation in management, the principle of
  unification of legal institution, the principle
  of job responsibility system, the principle of
  equality of nationality, and the principle of
  peoples supervision over functionary of
  administrative organs and the security of
  citizens rights.

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• Norms on the rights and obligations of state
  owned economic organizations, collective economic
  organizations, and foreign-funded or
  jointly-funded enterprises in administrative
  acts, and norms on state protection of the lawful
  interest of private economy.

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Homework

• Read CONSTITUTION OF THE PEOPLE'S REPUBLIC OF
  CHINA and write an article in English.

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• 1.3.1.2 Law
• The law is the normative legal documents made by
  the supreme organ of state power, including the
  basic laws made by the national peoples congress
  and the non-basic laws made by the standing
  committee of the national peoples congress.

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• Among the laws, the part that concerns the
  organizing of administrative organs,
  administrative activities and the content of
  administrative remedy may be regarded as the
  source of administrative law.
• Some laws, as the source of administrative law,
  have the nature of administrative law on the
  whole. For example, The Organic Law of the State
  Council of PRC, The Administrative Penalty Law.
• Some laws partly have the nature of
  administrative law, such as The Environmental Law
  of PRC.

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• 1.3.1.3 The normative legal documents made by
  administrative organs
• They are next to the constitution and the law,
  and cover the following documents

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• Administrative regulations, the normative legal
  documents made by the State Council according to
  the authorization of the constitution.
• Administrative rules or departmental rules, which
  are the rules released by the ministries and
  commissions of the State Council or by some job
  departments.
• Local rules or the rules of local governments.
  That is, the rules made by the governments of
  provinces, autonomous regions and municipalities
  directly under the General Government, by
  governments of the capital cities of provinces,
  autonomous regions, by governments of bigger
  cities approved by the State Council or by the
  government of special economic zones.

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• However, the normative legal documents made by
  administrative organ shall not be against the
  constitution and the laws.
• Also, the normative legal documents of one level
  shall not be at variance with that of the higher
  level.

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• 1.3.1.4 Local regulations, regulations on the
  exercise of autonomy(????) and separate
  regulations(????)

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• 1.3.2 Other sources of administrative law
• 1.3.2.1 International treaties and agreements
• 1.3.2.2 Interpretation of law
• The interpretation made by authorized organs,
  including legislative interpretation, judicial
  interpretation, administrative interpretation and
  local interpretation. The judicial interpretation
  of the Supreme Peoples Court is of special
  important status.

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• 1.3.2.3 The normative legal documents jointly
  released by state administrative organs, the
  ruling party and social organizations
• For example, documents jointly released by the
  State Council and the central committee of the
  Communist Party of China.

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1.4 The Development of Administrative Law

• 1.4.1 Theoretical basis for administrative law
• Rousseau put forward the claim of natural
  rights. This ideology was affirmed after the
  French Revolution of the bourgeoisie. The
  appearance of administrative law is to guard the
  natural rights of citizens.
• A more direct influence on the generation of
  administrative law is the theory of the
  separation of three powers, which was founded by
  Montesquieu.

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• Constant experience shows us that every invested
  with power is apt to abuse it. To prevent this
  abuse, it is necessary from the very nature of
  things that power shall be a check to power.
• by Montesquieu

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• Montesquieu believed that in all countries there
  are legislative power, judicial power and
  executive power. He suggested that the three
  powers separately exercised by different organs
  in order to ensure the existence of liberty. The
  separation of powers emphasizes the balance of
  powers, which certainly led to the regulating and
  control on executive power.

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• The theory of rule of law also deeply influences
  the generation and development of administrative
  law.

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• ??(rule of law)
• ??????????????????????????
• ????(human nature, the sum of qualities and
  traits shared by all human beings.)?????????,?????
  ?????????

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• 1.4.2 The historical development of
  administrative law in new China
• Administrative law in new China was generated in
  1950s, but is was paid little attentions to and
  was not systematical until 1980s.

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• Administrative Litigation Law,1989
• Law of the Peoples Republic of China on State
  Compensation,1994
• Administrative Penalties Law,1996
• Administrative Reconsideration Law,1999
• Administrative Supervision Law,1997
• Law of Legislation,2000
• Administrative License Law,2004
• Civil Servant Law,2005
• Regulations on Letters and Visits,2005

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• Still under way
• Administrative Procedure Law
• Administrative Coercion Law

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• ??????????
• 1978???????????,????,????,????,?????
• 1997?,?????,??????,???????????
• 1999??????,?????????????,???????????
• 2002?,?????,??????????????
• 2007?,?????,?????????????

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• The development of administrative law rooted from
  the reform and opening to the outside world,
  rooted from deep renovation of national economy
  and social system. The reform of economic system
  means the change of the relationship between the
  country and citizens, the transition of citizens
  status from object to subject and the necessity
  to redefine and control governments power.

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• ??(rule by law) ???(rule of law)
• ?????,?????,???????
• ????????????????
• ?????????????,??????

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• ????,????
• ????????628?,?????????,???????633???????390???,
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  ???