The Study Of Task-based Administrative Organization Law

As the legal construction of China’s administrative organization laws has always been in slow progress and the system is also not very perfect,the research of administrative organization has been the “short board” of China’s administrative law research for a long time.Although the status quo,to a large extent,can certainly be ascribed to constitutionalism,traditional administrative culture and the like factors,yet the academic circle shall also reflect a lot on it.The prevalent dominant administrative law theories still regard it that administrative organization law,administrative act law and administrative remedy law are the three components of administrative law;however,another set of research thinking,namely “administrative subject→administrative act→administrative remedy” seems to be formed in practical study.The above thinking impedes the substantial breakthrough of China’s administrative organization laws in terms of theory and legal system,and thus numerous key administrative organization factors are included in the legal dimension for regulation;the research of administrative organization law has also long been suspended on the level of "just researching the system itself”,and the research achievements of administrative organization laws and those of the public administration are highly overlapped;administrative laws are impotent to guide and comprehensively participate in China’s administrative system reform,and it’s hard to trace administrative laws in administrative approval system reform,comprehensive law enforcement system reform,mass organization reform,industrial and commercial system reform,and investment system reform.However,some Western countries such as US,UK,Germany and France and China’s neighbor,Japan all formulate their administrative organization laws first and then perfect their administrative procedure laws and judicial review systems,which are the major development path for their administrative laws.The relative maturity of administrative organization laws is a common feature of Western countries’ administrative laws;as for these countries,their task of administrative organization legalization has been completed.The development history of the administrative laws abroad gives us some implication: administrative laws shall attach more significance to the development of administrative organization laws besides researching administrative act laws and administrative remedy laws.The questions that the research seeks to answer are: what is the practical system of China’s administrative organization laws? Are there any China’s own features or models? What are the theoretical foundations of the model? Is there any space for its further development in the future?The reclassification and definition of administrative organization laws are the research basis of the thesis.As far as the thesis is concerned,then supporting concept of administrative organization law is organization-administrative organization-administrative organization law.China’s present organizations are the evolution results of unit system since 1949,and have Chinese characteristic,and the implementation of establishment system.From the perspective of administrative organization law,with whether establishment applies to the organization as the standard,the thesis classifies China’s present organizations into administrative organizations,mass organizations,public institution organizations,grass-root autonomous organizations,social organizations,business organizations,and other organizations.Administrative organization,as is defined in the thesis,refers to the administrative organizations that implement administrative functions and powers and take completing administrative tasks as the goal.The administrative organization can be divided in terms of broad sense and narrow sense.The administrative organization in narrow sense only refers to administrative bodies;the administrative organization in broad sense not only includes the administrative bodies,but also the public institution organizations,social organizations,and business organizations,and it not only includes the administrative organizations with legal person status,but also the internal organizations with legal person status.The administrative organizations in the thesis mainly refer to the administrative bodies;however,as the concept of administrative organizations in the broad sense also includes other organizations,the exploration of it will be hard to avoid.Based on the research achievements of organizational sociology,the thesis classifies the core elements of China’s administrative organization as organization setup,administrative level,administrative region,administrative functions and powers,and personnel force size.As is proposed in the thesis,the definition of administrative organization law refers to the legal set that regulates the elements of administrative organizations.Meanwhile,the thesis studies the administrative organization rights in Germany and China’s Taiwan,and defines administrative organization rights as the power to configure administrative organization elements as per legal regulations.China’s administrative organization legal system originates from 1949 when People’s Republic of China was established,about 70 years till now.During the above period,China issued three organizations laws,which were in the same strain but had their own features in specific system.Accordingly,the thesis divides the period into three historical periods,namely “Common Program Period”,“Initial Socialism Development Period",“1982 Constitution Period”,classifies the basic contents of the above in a respective manner,and reveals the historical development skeleton and path of China’s administrative organization laws.Due to the difficulty of searching specific historic materials,the thesis especially introduces the administrative organization laws of “1982 Constitution Period”,namely the China’s present administrative organization law system.Based on the exploration of China’s administrative organization law system historic development,the thesis proposes the argument that China’s administrative organization law model is task-based,and makes the following analyses.First,based on the views of Taiwan’s scholars,the thesis defines administrative task as all the affairs that the administrative organizations undertake as per laws or regulations or implement in legal manners.The definition includes meanings in three levels: first,the nature of administrative task is the affair itself;second,administrative task originates from the direct legal regulations.Third,besides legal regulations,it also includes the affairs that are not included in the legal texts but can be implemented by administrative organizations in a legal manner.The premise of implementing in a legal manner is certainly that the administrative task itself is legal.Administrative task has the following features: it belongs to the subordinate concept of national task,it is a concept of dynamic development,it is a neutral concept,and it can be the standard of judging administrative organization.Then,the thesis proposes that task-based administrative organization law is the model China’s administrative organization law,and defines it.The so-called task-based administrative organization law refers to the model that takes completing administrative task as the goal and the one that laws give full authorization to administrative bodies and that administrative bodies lead to configure administrative organization elements.The reasons are as follows: first,from the perspective of historical development,configuring administrative organization elements with administrative task as the center is one important principle line of China’s administrative organization law development;second,from the perspective of legal regulations,China’s constitution and the legal provisions of the administrative organization laws stipulates numerous administrative tasks of China’s administrative bodies;third,from the implementation of the present national policies(including numerous administrative tasks),China’s administrative organization laws will make adjustment based on the specific implementation of these national policies.To further interpret the features of China’s task-based administrative organization laws,the thesis concludes the administrative organization law models of Western countries and Japan as rule-oriented administrative organization laws,compares task-based administrative organization laws with the above,and finds that the above two have obvious differences in terms of “administrative task and administrative organization law relationship”,“legislative subject”,“administrative organization setup right ",and “the control manner of personnel size".Finally,with the establishment of China’s(Shanghai)Pilot Free Trade Zone as a case,the thesis explains China’s task-based administrative organization laws.Task-based administrative organization law,as an existing model of China’s present administrative organization laws,cannot be “a river without source,a tree without root”,but has corresponding theoretical basis for supporting.As the academic circle does not attach great significance to administrative organization law research itself,the theoretical bases of task-based administrative organization law are always weak.The thesis proposes that the basic bases of task-based administrative organization law are “democratic centralism theory”,“administrative organization theory” and “authorization theory”.Democratic centralism theory,as the principle of organizing activities by the national organizations stipulated by China’s constitutions,is a legitimacy basis;administrative organization theory can efficiently connect the administrative organizations with the administrative tasks,expand the participation scope of administrative tasks,and optimize the structures of the administrative organizations via the core elements of the administrative organizations.Task-based administrative organization laws takes completing administrative tasks as the center,focuses on the guarantee of administrative power operation;authorization theory directly determines the power configuration among the administrative organizations,and is also the basic theories.Task-based administrative organization laws are the achievements of refining the features of China’s administrative organization laws by the thesis,also admit that the above laws are of great efficiency to control China’s administrative organization scale,but it does not means that China’s task-based administrative organization laws are perfect.At least the following problems exist: first,the legal terminology is in logical mess,for example,the relationship of administrative bodies,government,and administrative authorities.Second,the legislative styles are contradictory.For example,the State Council organization law is separate legislation while local organization law integrates the authority bodies with the administrative bodies to legislate.Third,the specific legal system of the administrative organization has some problems,such as losing control of leadership positions and random arrangement of administrative organizations.Meanwhile,the tide of world’s new public administration,the proposal of China’s national governance theory,government function transformation and task-based administrative organization laws integrate with one another in terms of functions,boosts its further development,and meanwhile makes it inevitable for China’s task-based administrative organization laws to perfect.In the end part,the thesis discusses the perfection of task-based administrative organization laws.The general perfection thoughts proposed by the paper are: gradual perfection rather than total reconstruction,basing on its own features,learning but not copying.The standards are mainly: following the basic principles of the constitution;following democratic centralism principle(principle of organizing activities by national organizations),following constitution’s setting of administrative organization right,and following the Party’s guidance functions to legal construction.With the thought and standard,the thesis proposes three specific reform measures:first,integrating the legal terminology system of existing organization laws,second,perfecting the legislation styles of administrative organization laws,and third,improving some specific legal systems in the administrative organization laws.As there exist many problems in modifying the administrative organization laws,due to space limitation,it’s hard to cover all,so only the key points are expounded.