Study on Institutionalization of Non-mandatory Administrative Actions
|Course||Constitutional and Administrative Law|
|Keywords||Non-mandatory administrative actions Institutionalization Theoretical sources Normative contents Normative forces|
Non-mandatory administrative actions refer to those administrative actions which are voluntarily performed by administrative subjects pursuant to their responsibilities and competences without the compulsory obedience and acceptance of administrative counterparties, including non-mandatory means like administrative guidance, administrative contracts, administrative awards, administrative mediation and administrative information service, etc. In this type of actions, the counterparties are entitled to the freedom to choose obedience or not according to their judgments on benefits. If the counterparties do not obey, the administrative subjects cannot exert sanctions like punishment or something else. So, the implementation of this type of actions is based upon the counterparties’psychological and ideological identification, and the obedience to them is acquired through beneficial induction, reasoned persuasion and governmental prestige. In the traditional conception of administrative legal scholarship, one of the main features of administrative actions is the mandatory nature, which means all actions carried out by administrative subjects are based upon administrative powers and the implementation of them is guaranteed by the state compulsory power. But during the process of administrative practice, mandatory administrative actions are not only inadaptable to the need of the harmonious development among officials and citizens, but also incapable of dealing with the new type of administrative legal relationship focusing on counterparties like administrative democracy and service administration. This article argues that, the inherent flaws contained in mandatory administrative actions should be made up by non-mandatory administrative actions. However, the soft and flexible features of non-mandatory administrative actions make it difficult in theories to regulate them through legal institutions, and there are also vacancies of institutions and regimes in practice. Since 2005, the industry and trade bureaus of Quanzhou and Jilin cities have made the innovation to adopt a series of normative documents to control and regulate non-mandatory administrative actions during the process of carrying out non-mandatory administrative practice. The core motive of this article lies in the study of the institutionalization of non-mandatory administrative actions, seeking institutional regulation upon governmental soft execution of law by analyzing the adopted legal texts on non-mandatory administrative regimes, which includes analyzing the normative status, contents and forces of these regimes and exploring the related legislative technologies and the absorption of all kinds of non-mandatory administrative actions plus the accountability mechanisms on illegally or improperly implemented non-mandatory administrative actions, in order to provide some enlightenment for the process toward rule of law on non-mandatory administrative actions.In sum, the core content of this article focuses on how to construct the fundamental theoretical system on the institutionalization of non-mandatory administrative actions by doctrinal and institutional analysis. The article consists of five chapters. Chapter 1 and 2 provide doctrinal analysis on the institutionalization of non-mandatory administrative actions, therefore laying a solid theoretical foundation for the concrete practice of these actions. Chapter 3 to 5 provide a comprehensive analysis on the adopted legal texts on non-mandatory administrative actions, and raise some specific proposals for further improvement.Chapter 1 discusses the theoretical source of non-mandatory administrative actions. Judging from the sense of source, the notion of non-mandatory administrative action stemmed from the theory of administrative action. With the development of democracy and rule of law, the notion of administrative action was gradually divided into two parts: mandatory administrative action and non-mandatory administrative action. There are differences and ties between these two parts, and both are indispensable components of administrative actions. As to the basis of legitimacy for non-mandatory administrative actions, some existing research has discussed it in detail, but nevertheless lacks due depth under a general view. Only by precisely positioning of“freedom—mandatory—non-mandatory”in legal philosophy and analyzing their sources can we further draw the legitimacy of non-mandatory administrative action itself, and then the legitimacy of the institutionalization of it. Specifically speaking, freedom is not only a fundamental human right, but also a basic value that human living pursues; However, compulsion is always attendant with freedom, and the objective of compulsion from the government is to mandatorily implement the governmental will in among citizens. This compulsion has two functions, the negative of which is to interfere with and even eliminate personal freedom and is deemed to be the enemy of freedom, while the positive is to protect the public order and manage public affairs. As far as the positive function is concerned, compulsion is indispensable, otherwise nations will deteriorate into an anarchic status of chaos; but the inherent flaws of compulsion make it difficult to achieve the positive function of compulsion and cater for the developmental trend of modern democracy and the rule of law. In order to redress this deficiency, we can only find solutions from the opposite of compulsion—non-compulsion. Among the executive ways for administrative ends, if it is not mandatory, that means it is non-mandatory. Thus non-mandatory administrative actions came into being, redressing the deficiency of mandatory actions and performing the responsibilities to protect public order and carry out public affairs by their own functions.Chapter 2 demonstrates the basis of necessity of institutional regulation. Institutions refer to a series of rules binding upon people’s behaviors, or behavioral procedures or guidance demanding everyone to commonly observe. As to the institutions regulating non-mandatory administrative actions, they are classified to“formal rules”among institutions which also have binding forces and exhibit a flexible feature on the basis of stability. In the sense of functions, the institutionalization of non-mandatory administrative actions is helpful to promote the rule of law of administration and enhance administrative efficiency and regulate governmental behaviors. The legitimacy to regulate non-mandatory administrative actions characteristic of softness and flexibility lies in the following: first, non-mandatory regimes are mandatory upon administrative subjects, not counterparties; second, institutionalization will not affect the soft and flexible features of non-mandatory administrative actions; third, institutionalization is capable of contributing to the conversion from mandatory actions to non-mandatory actions; fourth, non-mandatory administrative actions’own attributes require institutional positioning; and finally, there are quite a few problems in the practice of non-mandatory administrative actions short of institutional regulation, including the shortage of procedural institutions and accountability mechanisms in addition to the difficulty to get remedies, etc. All of the above call for the emergence of institutional regulation upon non-mandatory administrative actions.Chapter 3 discusses the normative status of non-mandatory administrative regimes. This part provides a macro exploration on the legislative subjects, normative forms and publicity of the existing non-mandatory administrative regimes, and attempts to exhibit the overall situations of the existing non-mandatory administrative regimes on the legislative level. With respect to the legislative subjects, the existing non-mandatory administrative regimes were all drafted by official branches of local governments, which leads to the low rank of the legal force of related documents. This article argues that it should be the State Administration of Industry and Commerce that adopts departmental regulations to elevate the rank of the legal force of non-mandatory administrative regimes. With respect to the normative forms, the industry and commerce bureaus of Jilin and Quanzhou cities have adopted 20 normative documents altogether, and respectively stipulated the non-mandatory working mechanisms and measures. With respect to the publicity, both the industry and commerce bureaus of Jilin and Quanzhou cities have made adequate publicity about the legal texts of the non-mandatory administrative regimes adopted by them, only very few of which cannot be easily searched and found by the public.Chapter 4 focuses on the normative content of non-mandatory administrative regimes. During the process of the institutionalization of non-mandatory administrative actions, the bureau of industry and commerce of Jilin city made a division of“working mechanism”and“working measure”: with respect to“working mechanism”, ten non-mandatory“working mechanisms”were adopted including institutions of administrative information publicity and registration affairs guidance, etc.; with respect to“working measures”, five types of actions such as administrative guidance, administrative contract, administrative awards, administrative mediation and administrative information service were included. The motives set by“working mechanisms”mainly consist of two aspects: one is to mandatorily implement non-mandatory administrative measures in administrative work by legal documents, the other is to regulate and control non-mandatory administrative actions in practice. The application of“working measures”in practice is not proportionate. Civil servants should apply the most appropriate type of actions pursuant to the practical needs. They should not decide the working measures simply according to costs or convenience. For example, when settings fit for administrative mediation are concerned, they should not apply administrative guidance or administrative information service, which are not appropriate, simply for reasons of cost and time saving.Chapter 5 discusses the normative forces of non-mandatory administrative regimes. Currently adopted non-mandatory administrative regimes are almost all“normative documents”published by administrative subjects, thus their legal force is lower than laws, administrative statutes and regulations with their positions in legal ranking low and applicable scope limited, and they lack justiciability in administrative law suits. Under such circumstances, in order to convert non-mandatory regimes from theories to reality and from institutions to practice, it becomes a critical problem how to ensure non-mandatory regimes to take real effect and be commonly observed by civil servants. As to the setting of responsibility clauses, this article argues that internal responsibility should be the main regulating measure for the common observance of non-mandatory administrative regimes by administrative subjects and their civil servants. And, due to the close interest relationship between assessment and civil servants, the result of assessment could be one of the forms for civil servants to assume internal administrative responsibilities. As far as the setting of accountability procedures is concerned, this article argues it would be more reasonable that the responsibilities of offenders be investigated by virtue of counterparties’complaints. However, though there have been already a few provisions on the procedures about counterparties’complaints in the existing non-mandatory regimes, these provisions still seem not enough, and we should detail them in the future institutional construction.