A Legal Study Of The Government Power List System

"Under the sovereignty of the people,the power of a government must not go beyond the scope of public interest".But power is born with an impulse of natural expansion.It is an eternal topic for human political civilization to effectively restrict power and make it active for the purpose of public welfare.The system of government power list,which is generally called the list of power in the latter part of 2014,does not include the authority of the party’s organs,legislation and judiciary.As an innovative system of "original" in China,the main purpose of this system is to create a "cage" which is capable,restrained and ubiquitous.We must vigorously limit and regulate administrative power,speed up the construction of a rule of law government and a limited government,and constantly enhance the vitality of the market and society.In addition,the list of powers,according to the provisions of laws and regulations,in detail enumerates the administrative organs,the implementation basis,the name of the power,the operation process,the time limit and the corresponding responsibility,so as to make the abstract legal provisions be figurative and intuitionistic,and thus helps to improve the administrative efficiency.Therefore,studying and improving the power list system has important theoretical and practical value.At present,the system of power list has been basically implemented inthe three levels of government departments in provinces,cities and counties.The pilot departments of the State Council and some township governments have also explored and promoted the system of power list.Formally,the list of powers has been rolled out across the country.However,Rome is not built in a day,nor can any system and facilities be perfected at the very beginning.According to the author’s research on the grass-roots level,the power list system may be facing a "life and death test",and there are many outstanding problems affecting the health and sustainable development of the system,and many power lists are even reduced to "online list" and "paper list",without any practical effect.For example,the legal nature of the list of powers is not clear,which has brought great trouble to practice,and the view of the "useless theory" of the list of power begins to spread;the compilation of the list of powers completely becomes the internal procedure of the administrative organs,and the lack of democracy has greatly influenced its scientific nature;the compilation of the list of power forces has a hard work task,However,there is a lack of top-level design,which causes different forms of power list and uneven quality.The list of power lists is not uniform,and the number of power items in the list of the same department and different regions is very different;the contents of some power lists are inconsistent with the current laws and regulations,and the few are the main bodies.It has not been corrected to increase ordecrease the statutory power to borrow money,and so on.All these seriously affect the authority and credibility of the power list,which restricts the actual effect of promoting the construction of a rule of law government.In addition,according to the author’s inquiry on the "Chinese referee’s net",some low quality list of power has become the cause of the litigation of the administrative relative and the reasons for the failure of the administrative organs.This is a new problem in the administration of the rule of law,and it can not be ignored.In order to improve the system of power list,we should take the problem as the guidance and analyze the theoretical source,the realistic basis,the system comparison and the implementation status of the list of power.Apart from the preface,the article is divided into seven parts:The first chapter is "the theoretical gene of generation and development of power list".Any system is not based on nothing,it is based on certain theories.This chapter is the theoretical source of power list.First,the direct theoretical cause of power list is that power has natural expansionary nature.It prevents abuse of power through a list of "drawing the ground",which is a direct system response to the current power disorder.Secondly,the demonstration of power can be dismantled and quantified,which provides a possibility for the list of power lists to enumerate the matter of government power.Otherwise,this system can not take root.Thirdly,the interpretation of the list ofpowers is produced under the background of the rule of law with Chinese characteristics.The implementation of the rule of law is the necessary condition for the generation of power list,and the list of power is a great sublimation of the rule of law of power;the core of the rule of law lies in "restricting public power and protecting private rights",which is consistent with the main purpose of the list of powers.Fourth,it is argued that the development of market economy is the internal motivation for the generation of power list.In addition to the clear relationship of property rights and freedom of contract,the socialist market economy of Chinese characteristics also needs the "Pro Qing" political and commercial relations,the "clear" public and private boundaries and the "not" power boundary.The list of powers is designed to adapt to the high quality development of the market economy.Fifth,argumentation that "good governance" is an important theoretical basis for power list.The core of "good governance" lies in multiple co governance,and the list of power locks the boundary of administrative power,releases the space of social subject autonomy and common governance,and provides the possibility for "good governance".One of the purpose of the list of powers is to play the role of autonomous organizations,social groups and trade associations in the economic and social development.It is also an important embodiment of the theory of "good governance".Finally,the root of power is ultimately derived fromthe authority of the people.The fundamental purpose of the system of power list is to prevent the alienation of power,so that the administrative power is always running around the purpose of public welfare and always embodies the reasons of the people’s sovereignty.The second chapter is "the realistic necessity of listing China’s power".The first chapter is to demonstrate the theoretical basis of the list of powers.Moto Akinori expounded the need for a list of powers in the context of China’s reality.First,the inventory system is designed to cope with the complexity of China’s legal system.For example,by the end of2017,there were 260 existing effective laws in China,750 administrative laws and regulations,nearly 8000 local regulations,more than 700 autonomous regulations and more than 700 separate regulations,and the speed of "independent reform and release" was very fast.The laws and regulations concerning the power of the administrative organs not only have administrative organization law,but also a large number of unilateral laws;there are not only administrative laws,but also civil and economic laws and regulations.The dazzling legal system not only brings great trouble to the counterpart,but also brings inconvenience to administrative organs.Listing all the power matters through the list of powers will help solve the above problems.Second,the list of powers is also an important way to promote market development and social expansion.The scope of government power in China is extensive,andthe rule of law and economic development reflect strong government propelling characteristics.In the new era,the development of the new economy needs to further mobilize the strength of the market competition;the development of the rule of law in the new era requires the people’s wide acceptance of the rule of law in the hearts of the people and the rule of law into a way of life.On the basis of the more "modesty" of the administrative power,it is necessary to realize the better development of the market and the greater expansion of the society,and call for the list of power.Thirdly,the problem that the Chinese administrative system has not solved for decades is not completely straightening out the relations between the central and local governments and the relations between the various levels of local governments.In the process of the compilation of the power list,the systematic combing,analysis and determination of the authority of the government departments at all levels will help to straighten out the longitudinal relationship of the administrative power of China.Fourth,in the long run of big government thought inertia,although the Chinese government has long been "limited power",but in fact still bear the "unlimited responsibility",often take on the responsibility of the citizens and the social subjects themselves.The power list requires the government to exercise only the power within the list,and also only take on the responsibility in the list,thus resolving the contradiction betweenthe "limited authority" and "unlimited liability" of the government.Finally,the power list is conducive to improving administrative efficiency."Because the complexity of modern society is far beyond human resources and the scope of human resources,human experience often appears negligent or omission.Human society needs to use a simple and easy list to manage all aspects of social life,such as administrative,commercial,financial,medical and other social life,which will greatly improve the operational efficiency of social life," the list of powers.This function also helps to improve the effectiveness of administration.The third chapter "why does western countries have no power list?" The power list system is a major theoretical and institutional innovation in China,and there is no such system in western countries.Why is there no power list system in the west,which has always been highly vigilant against administrative power? In this chapter,this chapter first systematically combs several stages of the western power constraint mechanism,namely,the stage of power separation and balance in the classical period,the stage of administrative bureaucracy after the end of the nineteenth Century,the stage of power operation after the Second World War,and the sharing of power by the pluralistic main body since the 80 s of the last century.The stage of governance(the stage of good governance).Then,in the two hundred years since the bourgeois revolution in the US and France,what are the main ways to restrictadministrative power in western countries? According to the summary of this article,the basic ways of power restriction in western countries mainly include: restricting power by power,restricting power by right,restricting power by information publicly,restricting power by negative list management mode,controlling power of central(Federal)and local government,restricting power by public participation,according to legitimate Law Law procedures control power and so on.Relying on the deep-rooted thought of limited government,procedural justice and a relatively complete and complete power constraint system,the western countries did not produce,or did not need the power list system.But in our country,since the reform and opening up only forty years,the above power constraints are growing and developing,and there are still a lot to be perfected.Under this background,it is necessary to lock the power and power boundary through a hard list of power,cooperate with the supervision of the party,the supervision of the people’s Congress,the judicial supervision,the supervision of the society,and the other methods of internal supervision of the government,and so as to promote the standardization of the administrative power.The fourth chapter is about the implementation of the power list system.The first section,combing the historical stage of the development of the power list,mainly divided into three stages: first,the germination stage,the beginning of the last century in the late 90 s,starting from thebeginning of the administrative law enforcement responsibility system,began to make the preliminary exploration of the list of power;second is the preliminary stage,in 2007 through the government government information disclosure regulations,in order to promote the government The information disclosure is an opportunity to promote the construction of the list system at the core of public transparency of power;third is the stage of comprehensive deduction.Since the eighteen Party’s major,it is a historical opportunity to promote the comprehensive rule of law,and the list of power has entered the stage of comprehensive promotion and system implementation.In particular,"the Central Committee of the Communist Party of China’s decision on a number of major issues in the overall deepening of reform",adopted by the party in the third Plenary Session of the 18 th CPC Central Committee,pointed out that "the implementation of the power list system of local governments at all levels and their work departments and the operation process of power in accordance with the law." "The Central Committee of the Communist Party of China’s decision on the comprehensive promotion of several major issues of governing the country by law",adopted by the party in the fourth Plenary Session of the 18 th CPC Central Committee,pointed out "the implementation of the system of government power list,and resolutely eliminate the space for rent-seeking and rent-seeking." So that the development of power listsystem quickly entered the fast lane.The second section mainly analyzes the main ways and types of power list compilation.Since the relevant policy documents do not specify the procedures and standards for the compilation of the power list,a great deal of exploration has been made in the compilation of the power list,and some local characteristics have been formed,including the list of power,the parallel model of the list of responsibilities and the list of power,the combined model of the list of responsibilities and the list of power,as well as the single mode of power list.In addition,under the above three inventories,many provinces have made other types of single list,including the list of administrative examination and approval,the parallel mode of the charge item list of administrative examination and approval intermediary service,the negative list of enterprise investment project management,the management list of the special financial fund,and the administrative toll collection.Single.In the third section,we mainly analyze the "three lists" of the current government’s push,that is,the relationship between the list of power and the negative list and the list of responsibilities,and explain their respective meanings,similarities and differences,different fields of application and their respective functions.The fifth chapter is "the outstanding problems in the compilation of bill of rights".The first problem is that the legal nature of the bill of rights has not yet been clarifying.The official documents do not stipulate thelegal nature of the list of powers.There are various opinions in the theory and practice circles.Generally speaking,there are mainly government information disclosure,law compilation,administrative normative documents,quasi legal doctrine,business manuals or work guide.On the basis of refuting other views,this paper believes that the quasi legal theory is undoubtedly the most ideal state from the actual effect of the system list and the promotion of the construction of the rule of law government.The second major problem is the lack of uniform norms in the compilation of the list of powers.At present,there is a large gap in the list of power between various places,for example,in the list of provincial government power,the most power items in the Guangdong province power list are as many as 7867,the second,third Qinghai and Sichuan two provinces are 7488 and 6985,while the number of the last Anhui,Liaoning and Ningxia is only 17,respectively.The 09,1928 and1941 items are provincial governments.The gap is so large that people doubt their scientific accuracy.The difference of power matters in the same department of different regions is also very large.The power list of Hangzhou Public Security Bureau,Changsha Public Security Bureau and Hefei Municipal Public Security Bureau has published 242,354 and 175 administrative powers,and the same is the provincial capital city public security bureau,the difference is obviously too big.The third big problem is that the style of the power list and the inclusion of elementsare quite different.There are many missing items,for example,in the power flow chart,there are no power flow charts in Hebei,Inner Mongolia,Liaoning,Jilin,Gansu,Ningxia and other places;Sichuan stipulates only the "exercise department,the serial number,the type of power,the name of power,the exercise level" and so on.The basis of the matter of power.In the subject of the list of power,the institutions and the vertical management departments,which undertake the administrative functions according to law,do not list the power list in most places,but in fact,these departments have actually undertaken a lot of administrative functions.In addition,the author also found that the quality of some list of powers was obviously low,and even the power items did not list the power.The fourth problem is that there are great differences in the basis of sorting out power matters.Two whether the normative documents,the three fixed plans,the international treaties and so on can be used as the basis for sorting out the power list.In the legal system of China,a large number of provisions are stipulated,and how the departments of various parts of China should understand the process of combing the matter of power is also a problem that should be paid attention to.The sixth chapter is "Several Thoughts on improving the power list system".The first section is a reflection on the principle of"administrative power entering the list and excluding power outside thelist" stipulated in the two documents.This paper holds that this principle has some inherent tensions with the concept of "rule of public power and the protection of civil rights".From the theoretical point of view,from the subject,there is conflict between the main body of the power list and the main body of the legislative power.In terms of effectiveness,is it not power that the legal provisions,but the omission of the list,is not the power? From the point of view,"the administrative power into the list,the list of no power" deviates from the requirements of the rule of law.From the literal point of view,"administrative power into the list,no power from the list" deviates from the basic requirements of power.In reality,this regulation is too ideal and can not be realized in practice.The strict implementation of this provision will result in a series of negative consequences,such as the omission of power,the lag of the list,the lack of list and the improper entry of power.The second section,the five dimensions of the transformation and upgrading of the power list system,puts forward the five principles of improving the power list system,which are: the implementation of the power from the policy to the legal system,the form of the list from the free exploration to the unified standard,the thinking of the compilation from the quantity priority to the quality,the effectiveness of the system from the soft effect to the hard nature.The function of the system is from passive list to active list.The third section puts forward specific proposals forperfecting the list system of power.The first is to fulfil the legislative formalities and to endow the NPC and its Standing Committee with the functions of supervision and consideration in the power list system,to ensure the internal agreement of the system of power list and the principle of rule of law;two is to strengthen the co-ordination and standard unity of the compilation of the power list,and to unify the form of the state in the face of the form of power clearing.In practice,the form of the list is "different",the quality is different,the classification of power matters and the standards are not unified;three is to strengthen the democracy of the compilation of the power list,the introduction of public participation and social supervision,and the four is to strengthen the dynamic cleaning up of the list of power,establish a normalization mechanism,and ensure the list and law of power.The process of reform and abolishment of laws and regulations is consistent;the five is to improve the supervision and accountability mechanism of the list of powers so as to ensure the healthy and sustainable operation of the power list system.As a doctoral thesis in the early systematic study of power list system in China,this paper tries to use a variety of research methods to analyze the system of power list in a comprehensive way.Using the survey method,the questionnaire,telephone and interview of more than 30 basic law enforcement officers and legal personnel,the telephone andthe face to face interview were used to understand the current situation of the application of the current power list system,the problems faced and the suggestions for improvement.The case analysis is used to analyze a number of typical cases in government management,such as the combination of power crossing,power overlap,power gap,power conflict and power inefficient,and the case of judicial review encountered by the list of powers,such as the omission of power matters,the lag of power matters,the conflict of power matters and the law.And so on,in depth thinking.In addition,the statistical method is used to make a detailed statistics and comparison on the list of power list in 31 provinces and some districts,and some problems in the compilation of power list are found.By comparing the two different administrative power restraining mechanisms in China and the west,and answering the question of why the western countries generate the power list.Using historical research method,the historical process from the embryonic form of the power list of law enforcement responsibility system to the preliminary germination of power list and the full spread of it has been carding out in detail.Using the observation method,combined with the author’s understanding and observation in the government’s legal institutions and the office of the government office for many years,the author thinks about the operation of administrative power and the operation of the power list.However,the writing of this article is also restricted by some conditions,in addition to the extremely heavy work pressure of the author’s own "eight nights nine",which is also subject to some external objective reasons.First of all,although the way of inventory management has long been used in the developed countries such as the United States and Europe,the developed countries have no power list system,even there is no power list,which has brought difficulties to comparative research.Secondly,the list of power in our country is still a new system,this aspect of the in-depth study is very few,even a "virgin land",mainly in the news reports,not a relevant doctoral papers or monographs,to bring some difficulties to the literature retrieval.Of course,the advantage is that the study of this article and the combing of the power list are mainly the result of my own efforts and reflection.Again,at present,all levels of the government are implementing the system of power list.The content,form and type of the list of power are extremely complex.It brings a lot of material to the research work of the author,but also brings problems on the combing.In short,there are still many imperfections in this paper,which will continue to improve and deepen in the future research.