Filling Up Loopholes In Administrative La

There must be loopholes in the law,and no law can give answers to all disputes in advance,so does the administrative law.Whether starting from the abstraction and lag of the law itself,or based on the practical needs of the protection of civil rights,the administrative agency,which is the principal subject of administrative law,is obliged to close the loopholes of the law by ’filling in’ it.The legitimacy of administrative agencies to fill loopholes in administrative law mainly stems from the concept of division of power in the constitution;the legitimacy of democracy mainly stems from the establishment of administrative supervision systems in practice.Promotion provides a realistic possibility for administrative agencies to fill loopholes in administrative law.The loopholes in administrative law include two types:physical loopholes and procedural legal loopholes.Substantial legal loopholes in administrative practice often manifest conflicts of jurisdiction,incomplete power norms,and regulatory loopholes Procedural legal loopholes mainly manifest as violations of due process principles by rights-based procedures.The identification of loopholes in administrative law is closely related to the types of administrative law norms.Different types will have different methods of identification.As far as administrative substantive law is concerned,the normative structure analysis method,Radbruch Formula and purpose compatibility are all important methods to determine whether there is a legal loophole.Among them,the regulatory structure analysis method mainly used to determine whether there is a regulatory loophole in the administrative substantive law;Radbruch Formula and purposeful consideration are powerful tools for analyzing whether the administrative substantive law has regular loopholes.However,this is not absolute,some identification methods,such as purposeful considerations,can sometimes identify regulatory vulnerabilities.The identification of procedural legal loopholes needs to be achieved through the standard comparison method and the demand response method The above two methods are real in the discovery of the problem,but they are unified in the determination of real legal loopholes.The ’demand response method’ must eventually return to the ’standard comparison method’,since lacking of a legal norm in handling cases does not mean that there can be a legal loopholeThe right to fill legal loopholes is not an independent power,it needs to depend on the power of other countries to exist.In the process of administrative law enforcement,the right to fill legal loopholes needs to be attached to the administrative power,and its scope of authority is closely related to the administrative power.Under the constitutional framework of our country,although the exercise of administrative power must be restricted by the principle of legal reservations,this restriction is relative Administrative subjects often enjoy a wide range of autonomous space on the legal reservation matters with low density.In areas of higher-density intervention and reservation,administrative power also enjoys certain room for independent decision-making in terms of the choice of execution tools and the setting of standards.Authority and subject are two closely related concepts:authority is the authority of the subject,and different authorities of the subject different.According to this,we can construct the authority system to fill the loopholes of administrative law from the perspective of administrative subject.Based on whether the administrative subject enjoys the legislative power,the administrative organ can be divided into two categories:one is the administrative organ that enjoys the administrative legislative power;the other is the administrative organ that does not enjoy the administrative legislative power.As far as the former is concerned,it enjoys greater authority to fill loopholes,because in addition to the power of administrative law enforcement,it also enjoys the legislative power granted by the law.When the law clearly authorizes,the scope of its filling can even be expanded to intervene in the administrative field.On the contrary,the latter has less rights to fill loopholes,and the scope of its filling is limited to the matters with lower specification density within the legal reservation and the details and minor matters in the implementation of the parent law.The legal sources for administrative organs to fill loopholes in administrative law include written legal sources and unwritten legal sources.The statutory legal source mainly refers to the legal source expressed in the form of codification,which includes the constitution,laws,regulations and rules,legal interpretation,international law,etc.Unwritten law source refers to the source of law that is not expressed in codification and in terms of articles.It mainly includes customs,legal ideas,policies,and court decisions that have not evolved into customary law.Administrative agencies can use the following two methods when filling loopholes in administrative law:one is the case-filling method;the other is the general filling method.When filling a case,it is necessary to distinguish in advance whether the legal loophole is a substantive legal loophole or a procedural legal loophole,because the two methods are very different.Case filling methods of substantive legal loopholes include analogy,inference of course,reverse reasoning,purposeful limitation and purposeful expansion,etc.The method of filling the procedural legal loopholes mainly refers to the cost-effectiveness balance method and the interest coordination method based on the principle of due process.General filling includes three ways of formulating administrative regulations,setting technical standards,and issuing authority orders Administrative regulations refer to the rules set by higher-level organs or officials for lower-level organs or officials.Their task is to regulate their administrative behavior for most unspecified cases.It includes internal regulations,explanatory rules,discretionary rules,etc.Technical standards refer to administrative in the field of professional technology;an agency publishes functional,technical rules or standards for administrative regulations for self-compliance by administrative agencies.The technical standards usually clarify the laws supplemented by the technical standards in the first article;the power order refers to the administrative.Based on administrative functions and powers,the abstract regulations made by most unspecified persons on general matters are based on the basic function of the basic social order in the absence of clearly defined laws.There are both differences and connections between case filling and general filling:the difference is mainly manifested in three aspects:effect,scope and form;the connection is mainly reflected as an individual and general connection,that is,case filling is the basis of general filling,and general filling can be Provide reference for case filling.