Study On Legal Regulation Of Significant Administrative Decision-making

Legitimacy crisis of significant administrative decision-making gradually drawing people's attention,it is mainly manifested in mysterious,closed,lack of legitimacy,lack of openness and participation in the decision making process,decision-making results lack of rational and harm the public interest,anomic seriously affect the construction of law-based government,stable of the social order,formation of the healthy civil society.Legal regulation of significant administrative decision–making enhances legitimacy of decision-making by substantive and procedural regulatory,reducing the arbitrary exercise of discretion,while protecting the active function of shaping social order.Currently,different from the widespread concern in practice,research on significant administrative decision-making is relatively inadequate,the legal nature of significant administrative decision-making,the theoretical relationship between administrative decision-making and administrative action are both not well known.This article analyzed the definition of administrative decision-making in the science of administration,combined with description of administrative decisions-making in the level of the norms and practice,It is summarized that administrative decision-making contains a " dynamic process " and " external results " structure,reflecting the political process of interests measure.For ambiguous legal nature of administrative decision-making.After the implementation of "Hunan Provincial Administrative Procedure",throughinvestigation on matters of-making in local,we can find significant administrative decision-making cann ' t be equated with administrative act.The theory of administrative act in sience of administrative law is not enough to explain diverstiy of significant administrative decision-making in prcatice.It is necessary to combine the theory of administrative act with two other methodological,the article analyzed the administrative decision-making on the basic of three different methodological,the theory of "abstract and concrete administrative actions dichotomy," " administrative process "," administrative legal relationship ",deepened the understanding of the legal nature of significant administrative decision-making from the perspective of comprehensive.The study focused on the decision-making of significant measures,detailed description and analysis of the typical examples in practice revealed problems exist in significant decision-making,such as lack of public information,the closure process of decision-making procedures,lack of legality,lack of rational decision-making scheme missing,lack of oversight and accountability mechanisms of decision-making and so on.Problem arises because of the special interests involved in the decision-making,self-confidence about the regulation blindly,political thinking leading the process of decision-making,lack of physical control criteria of discretionary decision-making,barriers of monitoring institutional and so on.To this end,the goal of legal regulation is to solve the above problems and achieve legalization,enhance the legitimacy of significant administrative decision-making.The legitimacy contains some necessary values.First,to achieve a minimum legitimacy;secondly,powers of the significant administrative decisions will be limited within a reasonable range by legal regulation agenda-setting,on this basis,to protect the best possible choice to achieve the goal of decision-making,to achieve positive features of significant administrative decision-making.When all is said and done,the legal regulation of significant administrative decisions-making aimes at achieving justify decisions,it ultimately comes down to the acceptability of the public,heartfelt recognition and reception of the process and the results of the decision-making,acceptability is not only limited to the public,but also includes acceptability of administrative internal system.It's difficulty to control the discretion in significant administrative decision-making through legal regulation.By comparison between " means-ends " and " elements-effect " of legal norms structure,it revealed that the discretionary spaceof significant administrative decision-making is different from the traditional administrative discretion,they are two different kind of regulation ideas.Discretion justice or not closely related to the degree of rational decision-making level,lack of democratic legitimacy,vague goals of discretion,systemic bias and inapplicability of traditional discretion standard,these all means the necessity of regulation,in which the principle of legal reservation and proportionality play an important role in the limitation of discretion.Regulation of discretion in significant administrative decision-making generally expands from two levels,the procedural regulation and the substantive regulation.Procedural discretion regulation can be conducted from the angle of agenda setting,substantive discretion regulation can be conducted from two aspects,goal setting,select of the decision-making scheme.Analysts believe that the process of administrative decision-making determines the results,the process of decision-making can be divided into three main parts,issues setting,goal setting,means choosing.It has important theoretical significance for substantial regulation of administrative decision-making to examine the internal process with the principle of proportionality through the judicial perspective.The use of principle of proportionality has important theoretical value to find out what is rational,legitimate,scientific significant administrative decision-making.Besides control of discretion by the substantive regulation,the legal regulation of significant administrative decison-making also reflects in regulation on the process,intend to realize the legitimacy,the process of decision-making generally consists of three steps,the regulatory text reflects complex legitimate logic through the decision-making in accordance with law,scientific decision-making,democratic decision-making,but there is different legitimate logic which restraint the realization of legitimacy in practice,There are a variety of factors that constraint the realization of legitimacy logic in regulatory practice,for example,lags of administrative reform,a serious shortage of administrative rationality,barriers to the functioning of the expert,lack of effectiveness of public participation,exclusion of due process by results-oriented decision-making,lack of specific regulatory program design.Therefore,it is necessary to enhance the legitimacy from multiple-oriented aspects,for example administrative reform,internal and external environment of public participation.Should also be concerned about the uncertainty of legitimacy,todeepen the understanding of the proposition about the legitimacy.Legitimacy ultimately boils down to the sense of legitimacy of the political,the multilevel nature of legitimacy should also be concerned,analysis of the multi-level content about the law,the principle,the value,which would help to deepen the understanding of administrative decision-making legitimacy.Besides the legitimacy,justification of significant administrative decision-making also include the “best” of the decision-making program,it means concerns about the reasonableness of administrative activities on entity of the policy.The so-called best program with wide acceptability is generated by a broad consensus.Concerns on the “best” will promote optimal governance structure designed to deal with the problem of governance in the public domain.For example,administrative tasks,matching of policy objectives and organizational form,matching of policy objectives and policy tools,etc.Administrative Law will play a important role in promoting the positive administration.Legalization of significant administrative decision-making also depends on effective supervision,current supervision system under the constitutional and legal framework was not designed specially for significant administrative decision-making and the actual functioning of supervision is also not ideal.Different with the general administrative activities,in addition to legitimacy,rationality should also be considered.Based on the existing supervisory system,the supervision system should be promoted from two aspects,monitoring and supervision of the court and people's Congress.It is necessary to implementate and institutionalize the idea of ”report to people's Congress”,to enhance the effectiveness of supervision.It is also necessary to discuss about the supervisory of the court from the aspects of legality,rationality and information disclosure litigation.Current design of the regulation although reflecting the logical structure of the composite justification,but on the whole,the current design does not distinguish between different types of significant administrative decision-making,failed to take into account characteristics of different significant administrative decision-making.Meanwhile,to make the legal regulation more targeted,it is necessary to analyze the types of administrative decision-making,sketch out pedigree of administrative decision-making,find the different disciplines and deal with the complex decision-making practices with various ideas of regulation.Overall,the legal regulation intended to enhance the legitimacy of administrative decisions –making.Follow the inductive logic from specific to general,combined with decision-making practice of specific administrative department,constantly sum up the characteristics of regulatory experience in significant administrative decision-making,complete the refining,and sublimation of the experience,ultimately sought the successful path of effective regulation about significant administrative decision-making.