On The Regulation Of Professional Association’s Disciplinary Power By The Public Law

Presently, the reforming of public administration is a proccess of allotting and releasing the central power. A great variaty of professional associations who have the autonomy are undertaking the responsibility of some professional administration which is left by the retreating government. In China, we have the tradition of "One Profession, One Association", so a trad association is playing a dominant role in its own field. That is to say, the freedom of a member is restrained by both the government and professional association. The public law whose basic purpose is to redress the citizen rights ought to regulate the disciplinary power of professional association. Since this is a period in which the social structure is transforming from mono-structure into multi-strucuture, both the theory and systematic framework of social autonomy have not come into being yet. The public governing function of organizations, like professional associations, is only partially realized. The traditional public law which only focuses on regulating the administration power of government does not leave any room for public autonomic administration. As a basic and universal assumption goes that any power is likely to be abused, it is highly urgent that both the public autonomic administration and the power of professional association should be researched from idea to system. This research will be theoriectially and practically significant for broadening the study of the public law of China, for reconstructing the administration subjects of China, and for balancing the public autonomic administration and government administration.A professional association is an autonomic non-profit organization, which is made up of people or organizations who are in the same profession, and to meet their same need, undertaking the responsibility of public administration, and having public power. It focuses on attaining the goal of the whole professional and self-governing of some public issues in accordance with the law. So it is characterized as non-governmental, non-profit, autonomic and public. The disciplinary power of the professional association refers to the power that allows the association, which is undertaking the public governing responsibility, to punish those members who has violated the rules of their own profession. As an internal institution of autonomy, this is a power different from those external institution, such as the governmental power of punishing, administrative power of punishing. The particularity of its objects, the non-governmentality of its rules, and the variaty of its means can all present it as another power. What is more, the disciplinary power of professional association is not governmental but public power by nature. As to the source, there is a "Granted by External-Power Theory", which ignores the public nature and reverses the relationship between government and public. Therefore, this theory should be ingored, too. On the countrary, by reviewing theory of social contracts, theory of corporate actor, and logic of collective action, we could see that this power is originated from members, who transfer their own rights to the association. So, this power is originated from internal rights.Why should the disciplinary power of professional association be regulated? On one hand, power abuse must be prevented. For the reason that there are conflicts between the publicity and personal control of power, between the coerciveness and expansibility, and between intrumentality and accountability, and also, for the reason that the nature of personal power is to seek for the maximum, and that the internal structure of professional association is not perfect, this power is opt to be abused. On the other hand, members’ damage of rights should be redressed. As citizen of a nation and member of an association, an individul can enjoy both the legal rights and rights conferred by institutional rules. These rights overlap, therefore both of them should be protected. In fact, conflicts between members and the association always take place when the trad association is excising its disciplinary power. For instance, there are always conflicts between freedom of forming association and disqualification, between wok rights and cancellation of registration, between porperty rights and pecuniary penalty, and between reputation rights and public censure. Prevention of power abuse is an instrumental goal which regards it as the requirement of excellent administration, then redressing members’rights will be the final goal.Then how to regulate the disciplinary power of professional association? First of all, the external boundary and internal limits of the power must be defined. It is the initial device of standard power controling and preliminary step of how to regulate the power. Since it is beneficiary for constructing the constitution as a whole, adquate concern should be given to the relationships between autonomy and constitution, autonomy and soverignty, autonomy and heteromony, so as to set clear boundaries and limits of the disciplinary power. As to the esternal boundaries, it is virtually to set a boundary line between the government penalty power and and disciplinary power of professional association; whereas the internal limits come from the authority of the law of the state. Rights like life and personal freedom are regarded as the "Reinforced Items of Law", should be strictly followed; While penalties like the pecuniary penalty, public censure, membership cancellation, lifetime ban, and cancellation of registration, can generally be subjected to the law of the state, but specificly, be regulated by rules of professional association, which are followed as "Framework of the Law". Furthermore, the association is exclusively entitled to set some rules like warning, admonishing, circulating the criticism inside the association, suspending the professional qualification, and depriving rights endowed by rules of the association, etc.. The subject of disciplinary power is not the administrative department but the professional association, while the object involves illegal activities and offense against the rules of the association. By clarifing the external boundaries and internal limits of of the power, "Formalistic Ruling-by-Law" can be realized; whereas so-called boundaries and limits are changing constantly, it is impossible to realize "Virtual Ruling-by-Law". Therefore, to exercise the power with justness, regulations on the purpose of the power to keep the public welfare, on the loss an gaining to keep it balanced, and on the coverage to keep it equal, are quite necessary.Secondly, because of the drawbacks of the doctrine of strict rules, modern public law put more efforts on procedure so as to give prominance to the self-restrain of administrative power. Doctrine of natrue justice, which is to regulate the system of the whole human society, could also be applied to the exercise of disciplinary power of professional association. It includes three principles as following:the impartiality of decision-maker, justified opportunity of hearing, and illustration of the reason. To guarentee impartiality of decision-maker, the prosection role and adudication role should be seperated so that the direct cost, economic or direct damage cost, and moral cost will add up to a minimum result, which is in correspond with instrumental rationality. To give the disciplined member justified opportunity of hearing can ensure the chance of defending from "prosecution" and "unfavorable decision", which is the core of justified procedure. The justified hearing includes timely informing, complete information, neutral host, the attorney and validity of the hearing record. As to the illusration, if there are no exception items in associational rules, facts, relevant rules, and the decision proccess must be illustrated to the disciplined member. The illustration can reinforce the acceptability of the decision and prevent autocratic judge.Thirdly, judical review is necessary. In the judical review system of China, it has virtually exluded the possibility of reviewing the disciplinary activity of professional association, which is defined as "internal administrative activity" and "contract activity". From some of the academic points of view, professional association is classified as "organization authorized by law", so that the disciplinary activity should be taken as administrative activity of the state, which should be included into judical review system. In view of the internal source of the disciplinary power of professional association, and in concerning of some foreign theory, this dissertation holds that it is general tendancy for the judical system to review the disciplinary power of professional association. To measure the necessity of judical review, it changes from power source, which is formalistic, to the pulic function, which is essential. The disciplinary power of professional association, which is functioning as administration of the profession, is definitly a public and social power. Once the disciplined member is taking an unfavorable burden, it is supposed to be reviewed by judical system. What is a proper time for the court to interfer? Since the time of interfering might cause delimma for the judical interview—either being too early so that it will destroy the autonomy of the association, or being too late so that it will delay the protection of member rights. Therefore, when the judical system is going to make decision of reviewing, "exhuasting of internal redress" should be the essential concern, and "ripeness" would be the second, which can ensure the feasibility of judical review. To judge the ripeness, it is virtually to decide that the damage of members’ rights is not indirect but direct, not future but present, not subjective but objective. The formalistic standard of judging ripeness is whether the discipline of professional association is final one. Judical power, as a power of state, will influence the constitutional function by dening the autonomy of professional association. The strength of judical review is the core elements. The process of the review include illustration of rules, determining of facts, application of some uncertain items of law and administrative discretion. For balancing the judical power and associational power, the illustration of rules should not confine the citizen rights, or the court can replace it with their own illustration; while it is just a confinement of membership rights, the court should respect associational illustration. The determination of facts should be respected for most of time, and only be doubted in rare cases. Only when the facts are relevant to citizen rights, can the court review the facts and replace them. If the facts are just about membership rights, the maximum respects must be paid to the association. For the application of some uncertain items of the law, there should be adquate rooms for the autonomy of the association. Finally, the court should be prudent to the administrative discretion, show adquate respects with only some exceptional disrespects.