Constitutional Study Of Agencies By Governments At Various Levels In China

The agencies refer to the administrative organs established by the people’s governments at a certain level in certain administrative divisions with the approval of the competent authorities,which,together with the branches of the ministries,constitute the “dispatched organs” discussed in this thesis.The dispatched organs originate from the separation of powers between central government and local government;and its power in nature is the regional authorization on the basis of centralization.Generally speaking,the establishment of the dispatched organs is influenced by the state structure,the administrative division,the constitution and other constitutional factors.As far as China is concerned,the distribution of administrative power by the doctrine of democratic centralism has the tendency to lean to the central authorities,which needs to be effectively adjusted by giving full scope to the “two initiatives” doctrine of both the central and local authorities.Such a top-down leadership system of state administrative organs not only ensures the dominant position of the unified leadership of the central authorities,but also establishes the core mode of the decentralization of the vertical distribution of administrative power to the local people’s governments at various levels,and therefore,the regional authorization to the dispatched organs is just a subsidiary mode.However,a host of facts since the foundation of the PRC,this subsidiary mode usually occupies a relatively important position in specific periods and certain levels of the vertical distribution of administrative power.Based on the length of their existing period,their importance and other factors,agencies can be divided into two main categories:(1)“expedient agencies”,represented by administrative committees of the grand administrative area and district offices of the county or autonomous county;(2)“regime-institutionalized agencies”,represented by commissioner offices,subprovincial administrative offices,neighborhood offices and management committees of development zones and new urban areas of all kinds.Specifically,the existing period of expedient agencies is short as a whole,maintaining the inherent functions of “supervision and guidance”.When administrative committees of the grand administrative area changed from regime form at a certain level into an agency,their organizations and authorities were greatly compressed.With the strengthening of centralization and the merging of provincial regime form,the grand administrative area system was entirely revoked.Due to the organizations and authorities of district offices were highly converged towards townships,when the merging of townships made the span of control at the levels of county and township tend to be proper,the district offices lost the necessity of existence.Regime-institutionalized agencies existed for a long time;as well,it played “governments at a certain level” functions in practice.Due to the lack of effective legal restraint of commissioner offices at the levels of province and county,the organizations and authorities of them gradually expanded in political campaigns,and the central government failed to control them after they became the subprovincial administrative offices.Eventually,they were revoked through the full implementation of the city-lead-county system.Since the organizations and authorities of neighborhood offices organized the urban residents to enter the mission of the socialist public ownership,they also expanded sharply in political campaigns.Although the mission of neighborhood offices has changed since 1980 s,with the decentralization by grass-roots governments in city,the function of neighborhood offices has not declined;in contrast,it requires much help from the residents’ committees.The relationship between them need to be further rationalized.The establishment of all kinds management committee of development zones and new urban areas was not to solve the problem of improper span of control,but to achieve the rapid economic development by obtaining greater economic management authority.After years of development,a large number of management committees were granted social management authority leading to the trend of integrated development with administrative regions.However,the management committees,which not fully transformed into government at a certain level or joint organs with them,are currently out of the control of organic law,and this situation must be changed as soon as possible.Reflection on system in reality is the premise of the construction of systematic norms.Specifically,the various organization forms of the grand administrative area system are merely the concrete manifestation of the centralization of the central government after decentralization.In order to solve the problem of the improper control span of the upper levels over the lower ones,commissioner offices,subprovincial administrative offices,district offices and the neighborhood offices were set up,among which only district offices eliminated by natural selection with the lower regime organization expanded.Because of effectively filling the gap between levels of power,subprovincial administrative offices and neighborhood offices have the tendency of gradually developing into regimes.Although the city-lead-county system replacing subprovincial administrative offices seemed to solve the problem of “unworthy of its title” of the latter,the existing problems of the former were gradually exposed,with the phenomenon that part of the developed areas returned to the province-lead-county system.Compared with them,the neighborhood offices should enhance the autonomy of the residents’ committees by transferring to them most of their functions.However,at present,the neighborhood structural reform is still at the crossroads of historical choice.The social management authority granted to management committees of the development zones and new urban areas has exceeded the original purpose of authorization;therefore,it is necessary to achieve the integration and development of administrative regions.At present,there emerges a new power structure of different agencies and branches of state organs in the development zones and new urban areas,a “quasi administrative district” in reality,where exist serious unconstitutional and illegal phenomenon,and too many institutions and mechanisms need to be straightened out.In brief,the regime-institutionalized agencies have deviated from the inherent function location as a whole,and can not be achieved in a short time,based on which the relevant norm construction must be built.The normative construction of agencies shall be based on the Article 68 of the Organic Law of the Local People’s Congress and Local People’s Governments of the PRC.However,the current interpretation and systemization of legal dogmatics exhaustively still fails to produce a satisfactory solution to relevant problems of neighborhood offices and management committees.In order to comply with the constitution and the relevant policies of the central government,essential modifications to this article and related legal norms are in great need.The norm construction should obey the doctrines of constitutionality control mechanism run by legal reservation,legal explicitness and functional propriety,so as to achieve the goal of the legislation of agencies with the legal restrain as the core.