Research On Administrative Judiciary In The United States Of America

Being lack of the systematic research on the USA Administrative Judiciary inChina，the theme of the dissertation is to make a systematic exploration on theoperation of the Administrative Judiciary，clarifying misunderstandings and using it asthe reference to promote the rule of law in the government administration. There aresix chapters except for the introduction part，which briefly exhibits the implications ofthe research，the current pertinent domestic research，the research method and theframework of the dissertation.The first chapter is the definition of concepts related to the AdministrativeJudiciary. It is performed in six aspects: concept confusions；administrative lawjudge，non-administrative law judge，administrative judge，agency，the differencebetween administrative judge and court judge. In other pertinent domestic research，itis hard to tell the administrative law judge (ALJ) from the administrative judge (AJ).The author argues that the administrative law judge is the one that is protected by thefederal administrative procedure act (APA) and performs the quasi-judicial dutieswithin the agencies As a matter of fact，there are many personnel no matter in thefederal government，the state government or the local government，who are notprotected by the federal administrative procedure act but perform almost the samequasi-judicial duties as the administrative law judge. These people are entitled as thenon administrative law judge (Non-ALJ). The author argues in this dissertation thatthe Administrative Judiciary (Administrative Judge/Executive Judge) shall cover twoparts: the Administrative Law Judge and the Non Administrative Law Judge. Besides，agency is also defined，since agency is quite different from the administrativedepartment in China. There are substantial differences between the AdministrativeJudge and the federal court judge. In order to clarifying the misunderstandings aboutthese two kinds of judges，the author illustrates the difference by means of taking thefollowing five aspects into serious account:1. title；2. independence；3；knowledge；4. tenure and salary；5. way of adjudication.The second chapter is birth and establishement of Administrative Judiciary. Theauthor develops this chapter in three aspects: the birth， establishment andjurisprudential foundation of Administrative Judiciary. The industry revolution led tothe great changes in industrial production and coordination. The railway became thefocus of the public，which encroached upon the private benefits of the public andimpeded the advance of the society and economy. The stark reality promoted theenactment and application of the Interstate Commerce Act，which aimed to regulate the railway operation under the control of the federal government. The firstindependence regulation agency was established pursuant to the Interstate CommerceAct. Although there were ancestors of Administrative Judge in history，the post ofmodern Administrative Judge was officially and legally set up as of the establishmentof the first independence regulation agency. As to the establishment of theAdministrative Judiciary，the author conducts the illustration in the following threeaspects. First，the federal Administrative Procedure Act is significant in Americanlegal history，since it provides that the Administrative Law Judge shall be protected bythe act. Second，the promulgation of the Administrative Procedure Act confirmed theestablishment of Administrative Judiciary in the federal government. Last，with thedevelopment of the U.S. society and economy，the expansion of the agencies in theAmerican government and the diversification of their official duties， theAdministrative Judges are widely applied in various agencies， which directlypromoted the prosperity of the Administrative Judiciary. With respect to the lawprinciples for establishment of the Administrative Judiciary，generally speaking，thetwo principles of natural justice and due procedure are the basis. While，the authorargues that these above-mentioned principles are just macro-level guidelines. Besides,that there is still two other significant micro-level operating principles: separation offuncitions and on the record.The third chapter is operation of the Administrative Judiciary，which is thecentral part of the dissertation. The Administrative Law Judge is strictly protected bythe federal Administrative Procedure Act，so we can get a deep insight into thecomposition and operation of the Administrative Judiciary through observing theselection and routine management of the Administrative Law Judge. This chaptercovers six sections. The first section is the qualification and management of theAdministrative Law Judges. The following aspects are illustrated: the qualification，examination，selection and salary of the Administrative Law Judges. Also theunfavorable punishments for the Administrative Law Judges are presented. Besides，there is the illustration of the confinement of the Administrative Law Judges by the exparte contact. The second section is the official duties of the Administrative Judges，which covers the administrative adjudication and the administrative legislation. Theadministrative adjudication is comprised of two procedures: the formal one and theinformal one. The formal administrative adjudication is regulated and supervised bythe federal Administrative Procedure Act，in which the Administrative Law Judgepresides as a routine. While，there are no specific procedures defined in the federalAdministrative Procedure Act for the informal administrative adjudication. Actually，the informal administrative adjudication account for most part of the administrativedispute resolution. With the development of the society and economy，the federal courts permit the application of the Alternative Dispute Resolution (ADR) inresolving the administrative and civil disputes，which requires the AdministrativeJudges to play an active role，promoting the parties to reach an agreement by means ofADR instead of the administrative adjudication. The administrative legislationcovers two aspects: the legislation in way of the congress and the legislation in way ofthe court. Since the legislation in way of the congress consumes too much time andenergy，it is seldom applied in reality though it is more formal. When there is noobvious statutory language to indicate the legislation in way of the congress，theagencies will usually prefer the legislation in way of the court. No matter which wayof legislation is applied，the Administrative Judge plays significant role in theadministrative legislation. The opinion of them inevitably promotes the administrativelegislation towards the more practicality and feasibility. The third section is theorganization of hearings by the Administrative Judges，which covers three modes:1.the traditional mode；2. the mode of directly reporting to the agency chief；3. thecentral panel mode. The forth section is powers of the Administrative Judges，including making subpoena，controlling the hearing process，adjudicating pursuant tothe evidence， etc. The fifth section is the independence guarantee for theAdministrative Judges. First the independence of the Administrative Law Judges isguaranteed through the separation of functions，the security of tenure and the constantsalary. Then the independence guarantee for the Non Administrative Law Judges isillustrated. Finally，the author argues that only the personality could guarantee theindependence，whether there are the guarantee measures in the system or theorganization. The sixth section is the review system. The performance of officialduties by the Administrative Judge may be reviewed in two ways: the internalreview by the agency and the judicial review by the federal courts. The internalreview by the agency ensures the stability and consistency in application of theagency policies. While， the judicial review by the federal courts ensures thegovernmental agencies to perform from the stand of the public benefits andsafeguards the people’s rights from being encroached upon by the governmentalagencies.The forth chapter is the central panel system. As a matter of fact，it is anindependent structure illustrating what we mentioned in the forth chapter: the thirdmode of hearing organization. Doing so lies in the fact that it is a most recent trend inapplication of the Administrative Judges. This trend leads to disputes among theadministrative law scholars. The domestic scholars believe it will be an inevitabletrend to expand. While，the author argues that the central panel shakes the foundationfor the existence of the Administrative Judges. Therefore，central panel could only beapplied in a limited and small field. The fifth chapter is taking SSA and NLRB as the examples. In domesticresearches，SSA is usually selected，since it is the employer of the largest amount ofAdministrative Law Judges. While the author selects NLRB too，not only because it isthe second largest employer of Administrative Law Judges but also because itsadjudicative method different from that applied in SSA. The SSA adopts inquisitorialsystem，while the NLRB adopts the adversarial system. Besides，EEOC is alsoselected as an example. EEOC is typical in that it employs a large number ofNon-ALJs. The agency has a far-reaching influence，since it establishes a special EEOoffice in nearly all federal agencies，responsible for handling the discriminationcomplaints. EEOC is also characterized of adopting ADR widely.The sixth chapter is the reference of Administrative Judiciary in China.Considering the unique role played by the Administrative Judges in the agencyoperation in the United States of America，the author suggests Chinese governmentmay set up the similar administrative judiciary，which may help to defeat manydefects in our existing systems of administrative legislation， administrativeadjudication and administrative reconsideration. The similar administrative judiciaryin China may promote the standardization and professionalism of the administrativelegislation，upgrade the credibility of the administrative adjudication，and speeding upthe consummation of the administrative reconsideration.