Research On Censorship Behavior In Administrative Licensing

As an administrative law enforcement method for the state to manage social and economic affairs,administrative license has the characteristics of lifting the prohibition,granting benefits,passivity and dual effect.At the same time,it also has the functions of implementing macro-control,regulating market competition,protecting resources and environment,promoting economic development and maintaining social order.In the practice of administrative license law enforcement,administrative organs need to implement administrative license in accordance with statutory procedures.Generally speaking,the implementation procedure of administrative license mainly includes four links:application,acceptance,examination and decision.Examination is the key link of administrative license,and the examination degree of the administrative organ to the license application is an important content of this key link.Because the examination degree of the administrative organ to the license application directly affects whether the license applicant can obtain license.At the same time,it also involves the limits of the administrative organ's exercise of discretion and related administrative responsibilities and administrative compensation issues.In terms of the degree of examination,according to the provisions of Article 34 and Article 56 of the Administrative License Law of the People's Republic of China(hereinafter referred to as the Administrative License Law),there are mainly three different types of examination degree of the administrative organ to the license application,namely formal examination,substantive examination and compromise examination.Formal examination means that administrative organs mainly examine whether the application materials are complete and conform to the statutory form,and the degree of examination is relatively shallow;Substantive examination means that administrative organs not only examine whether the application materials are complete and conform to the statutory form,but also need to examine the authenticity and legality of the application materials,and the degree of examination is relatively deep;Compromise examination means that,in principle,administrative organs only need to conduct formal examination of the application materials,but under statutory conditions,they need to verify the authenticity and legality of the application materials.The degree of examination is somewhere in between.In a word,the degree of examination of administrative license applications by administrative organs is not unique,but diversified.In the practice of administrative license law enforcement,administrative organs should not only carry out detailed and thoughtful substantive examination,fulfill the "gatekeeping" responsibility of prior supervision,but also grasp the"degree" well.Because the deeper the administrative organs examine,the greater the intervention on civil rights,the greater the restrictions on economic and personal freedom,and also consume a lot of administrative resources,which does not meet the requirements of "limited government".But the administrative organs only carry on the relatively lax examination to the application material,and it is difficult to give full play to the above functions of administrative license,which is a prior supervision method.So what degree of examination should the administrative organ carry out for the administrative license application?What procedures need to be followed?How is the examination responsibility allocated?These are subjects worth studying.Especially under the background that China is deepening the reform of administrative examination and approval system and the reform of "simplifying procedures,decentralizing powers,combining decentralization with appropriate control,and optimizing services",the reform in the field of commercial system and the examination and approval of engineering construction projects is more vigorous.Among them,the reform of the relatively centralized administrative licensing power and the notification and commitment system have brought great influence on the examination system and led to some urgent problems to be solved.All this requires a theoretical response.As mentioned above,the degree of examination of administrative license is more important.That is to say,the degree of examination is directly related to whether the administrative counterpart can obtain license,and also involves the regulation of administrative power and the subsequent responsibility.However,due to the lack of clear and operable legislative provisions and theoretical support,in the process of implementing the administrative license,the administrative organ should examine what,the degree of examination,procedures and other issues have caused some difficulties for administrative law enforcement and judicial practice.This article makes an in-depth study of the examination behavior in administrative license,especially the degree and procedure of the examination and how to reasonably allocate the examination responsibility,and tries to put forward some ideas to solve the above problems,in order to make up for the deficiencies of the theoretical circle in this field,and hopes to be helpful to the administrative law enforcement and judicial practice.The thesis is composed of the introduction and five chapters,and carries out in-depth analysis and systematic research on the important issues existing in the examination behavior of administrative license one by one,including:The introduction part expounds the background,research significance and the current research status of the topic.At the same time,it explains the research content,innovation and research ideas and methods of the thesis.Chapter ? mainly analyzes the concept of administrative license and examination of administrative license,and defines the relationship between administrative license and administrative examination and approval.A clear definition of relevant legal concepts is conducive to further discussion on related content.At the same time,the author analyzes the function positioning of administrative license examination.Since administrative license is a necessary means for the state to manage social and economic affairs,then as a key link of administrative license-examination,should also become a necessary behavior.This article mainly expounds the significance and function of the examination from two aspects:"the need of the administrative organ's prior control" and "the need to protect the legitimate rights and interests of the applicant and the interested party".Chapter ? mainly analyzes the contents that the administrative organs should examine when examining the application for administrative license,which can also be called the scope of examination.The determination of the scope of examination is firstly conducive to the administrative organs in the examination of the "targeted";Secondly,it is conducive to standardizing the examination behavior of the administrative organs and preventing the administrative organs from arbitrarily expanding the scope of examination;Thirdly,it is conducive to the applicant to make relevant preparations in advance for the application for license.Generally speaking,the scope of the examination mainly includes the examination of the applicant's qualifications,ability,facilities,standards,etc.If ability is a necessary statutory condition for obtaining an administrative license,then the administrative organs must examine whether the applicant has the corresponding ability.Chapter ? mainly studies the degree of administrative license examination.The degree of administrative license examination can also be called the depth and form of the examination.As for the degree of administrative license examination,there are mainly three types:formal examination,substantive examination and compromise examination.Formal examination means that administrative organs only examine whether the application materials meet the formal requirements,and the degree of examination is relatively shallow;Substantive examination means that administrative organs not only examine whether the application materials meet the requirements of form,but also examine the authenticity and legality of the materials,and the degree of examination is relatively deep;Compromise examination combines some of the characteristics of both.This chapter studies the concept,means and scope of application of the above degree of examination,and studies the foreign regulations and practices on the degree of examination of administrative license.The purpose of studying foreign systems is not to directly transplant the system,but to learn from the beneficial ingredients and provide ideas for improving the administrative license examination system in China.At the same time,the author also analyzes and studies the contents of the reform of the administrative examination and approval system and the reform of "simplifying procedures,decentralizing powers,combining decentralization with appropriate control,and optimizing services" in this chapter,focusing on the impact of these two reforms on the examination of administrative license and the countermeasures to improve them.Chapter ? mainly studies the procedure of administrative license examination.This article divides the examination procedure into the on-the-spot decision procedure,the procedure for examining the authenticity and legitimacy and the hearing procedure.In fact,the hearing procedure is an integral part of the procedure for examining the authenticity and legality.However,since the procedure is relatively important and the Administrative License Law has a special section to stipulate it,the author also focuses on the analysis and discussion of the relevant contents of the hearing procedure in this chapter.As for the effect of hearing transcripts,the author puts forward the point of view that it should be treated differently in "administrative procedure" and "judicial procedure".This chapter also analyzes and studies the relevant contents of the judgment of the "third party's significant interests",the"disqualification system" and the "examination period system".Chapter ? mainly studies the effectiveness and responsibilities of administrative license examination.The examination behavior is an important part of the administrative license behavior.Whether the examination behavior is legal or not directly affects the effectiveness of the license behavior.The examination behavior can be divided into legal and effective examination behavior,general illegal examination behavior and serious illegal examination behavior.Generally speaking,the legality of the examination behavior mainly includes that the administrative organ has statutory powers,the factual and legal basis of the examination behavior is legal,and the examination behavior complies with legal procedures.The behavior that does not fully meet the above conditions and has illegal situation but does not reach the serious illegal degree is the general illegal examination behavior,and the administrative license decision made by the administrative organ on the basis of the examination behavior should be revoked.The behavior that has illegal situation and reaches the serious illegal degree is the serious illegal examination behavior,and the administrative license decision made by the administrative organ on the basis of the examination behavior should be confirmed invalid.At the same time,the author also analyzes and discusses the responsibilities that the administrative organ,its related staff and the applicant should assume after the administrative license is revoked or confirmed invalid.