Social Sciences in China (Chinese Edition)

No.7, 2017

 

Behavioral Law Mechanism Functioning in Lieu of Administrative Organization Law

(Abstract)

 

Ye Bifeng

 

The contents of administrative organization law include the rules of horizontal relations between administrative organs, but the administrative organization law in China makes no stipulation about it. This is an inevitable phenomenon usually seen in all countries, and a solution is to set up a behavioral law mechanism which functions in lieu of corresponding behavioral law while reaching a regulating objective. This solution can be designed by adding common laws and separate substantive laws to the constitution or unifying administrative procedure laws. Presently, the behavioral law mechanism in China is defined by separate laws, represented as a document processing system in form and as various particular systems in contents. In particular, respective examination and approval and the mechanism of examination and approval of important documents have worsened the burden of citizens, but joint meetings, administrative agreement and “consultation clause” do not worsen the burden of citizens, and have the meaning of decentralized democracy and equal consultation. As for the behavioral law mechanism functioning in the lieu of administrative organization law, there have the responsibility-means theory, the decentralized cooperation-democratic autonomy theory, the trust-authorization theory and the system-society theory. The early behavioral law mechanism in China was closely related to planned economy, and mostly applied to relations between governmental ministries; and the behavioral law mechanism based on a streamlining and decentralizing reform has been extended from relations between governmental ministries to those between different regions. The administrative examination and approval in China, including the behavioral law mechanism, have been catastrophically excessive, and have to be reformed. The super-ministry reform should be furthered, administrative power should retreat out of the distribution of market resource; and we should clarify local subjects, grant ultimate disposition power to local authorities, distribute local power in the light of governance requirements, reduce and optimize horizontal relations between administrative organs, and integrate the behavioral law mechanism by means of unifying administrative procedural legislation.