| As for a state,promotion of the cause of rule of law,safeguarding of human rights and enhancement of public welfare,not only hinge on central government,but also rely on local governments.Legal construction of local governance is the very key link during the process of practicing socialist rule of law and achieving the modernization of the national governance system and governance capacity.As to the local governance in the field of social assistance,social assistance is a system that aims to protect the right to live of the poor and satisfy their basic living conditions,the criteria of assistance differ from place to place,from time to time and from case to case,which requires that each place shall practice governance in accordance with the actual circumstances.Nevertheless,there still exist numerous deficiencies in today’s local governance in the field of social assistance.First,viewing from the perspective of academic research,administrative organization law,local administrative law and administrative literature related the theme of this research are still insufficient.Second,viewing from the perspective of practicing,there are also numerous maladies awaiting legal construction and amelioration.In view of this,the purpose of this research is to offer a ful-picture depiction of the field of local social assistance governance which has not yet been deeply probed into by currenet academic research,to seek out the institutiaonl deficiency and provide amelioration stratiges,so as to enhance the development of the research of administrative organization law,local administrative law and welfare administration law.The local social assistance subjects that this research primarily probe into include local government,local adminstive agency,charitable organization and administrative counterpart.First,local government.The function of local government in local social assistance governance could be defiend as “leading”.Viewing from the perspective of power relationship between local and central government,this very function of local government mainly manifests as “the primary duty bearer in administration” and “secondary duty bearer in finance”;viewing from the perspective of relationship between local government,local administrative agency and private subject,this very function primarily manifests as “the leader of local administrative agency” and “regulator and cooperator of private subject”.In such a position that connects the proceeding and the following and coordinate all quarters concerned,the local government commits itself to construct macro-level welfare administration law order and offer financial support for the operation of this law order by means of “establishing social assistance agencies”,“formulating social assistance plans”,“founding social assistance programs”,and etc.,so as to safeguard the basic right to live of the people.Nevertheless,due to the rule of law concerning administrative organization and administrative action lages behind,the scope of authority of local government is not explicit,the procedural rules that the local governemtn shall abide by in the administrative processes,like those of establishing social assistance agencies,formulating administrative plans and etc.,is not impeccable.Besides,under current accountability mechanism,the local government could not be held responsible strictly as wel.This means that the local government still drift out the legal control to a considerable extent.Second,local administrative agency.“Local administrative agency” refers to the local administrative organization except local government.Civial affaris deparment,education department and other relevant local administrative agencies are all “social assistance administrative department”,while civil affairs deparment lies in the most crucial position,the function of which could be defined as “taking the leadership”.From drafting social assistancve criteria to delivering social assistance funds and goods,from setting administrative procedures to ascertaining assistance targets,from prior review to dynamic management: in the field of social assistance which carries a distinct feature of “state steering”,it could be said that civil affairs deparment is the most direct and most detailed manifestation of “state”.Even though civil affiars deparment is the “institutiaonal basic shaft” of social assistance administration,the setting and operation of its authority is still problematic,that could constitutes a violation of the rule of law principles or good governmance spirits.This includes but not limites to: the power of civil affiars department to drafing social assistance criteria has not been explicitly delegated by the legislation,the procedure of criteria drafting is not open to the public,the status quo of judicial review of criteria is worrisome,the content of the procedures formulated by civil affairs department its own is problematic,the legality and effectiveness of the social assistance ascertaining mechanism is to be perfected,and etc.Thid,charitable organization.In the field of social assistance,local government and localadministrator agency correspond to “the dimension of public law”,but charitable organization possesses “the dimension of public law” and ” the dimension of private law” simultaneously.In our country,charitable organization could be divided as “official charitable organization” and “civil charitable organization”.The function of the former lies in participating in governance with the identity of pure private subject,on the basis of moral obligation or administrator contract,which shall be strengthened;while the function of the later lies in participating in governance with the identity of “official agency” under the appearance of social organization,or even with the identity of administrative subject,on the basis of moral obligation,administrative contract,administrative agreement or even legislative delegation.The administrative characteristics of official charitable organization shall be removed.Viewing from accountability,the differences in legal nature and way of act between civil charitable organization and official charitable organization determine the fact that the accountability mechanisms that could apply to them are different from each other as wel.Fourth,administrative counterpart.Administrative counterpart is the citizen,legal person and other organization that participate in administrative relationship,they may become administrative counterpart through exercising rights and fulfil ing obligation.In local social assistance governance,the function of administrative counterpart chiefly manifs as pushing administrative procedures forward by means of exercising their rights and performing their obligations.Taking minimum subsistence guarantee examination and approval procedure for example,the function of administrative counterpart lies in: file an application and initiate the procedure;participate in the examination and approval procedure and assist in the investigation,to push the procedure forward;facing procedural and substantive il egal acts,the administrative counterpart may fight them through administrative litigation to defend his rights and interests.Administrative counterpart is the subject of rights.Nonetheless,in current practice of administration,administrative counterpart’s principal status is not yet prominent: first,procedural rights and administrative duty of administrative counterpart and procedural rules that administrative department shall abide by and relevant legal legal consequences in legislation or normative ducuments are defective;second,the cases that minimum subsistence guarantee administrative staffs break the law happen occasionally,the protection that provided by relief agencies is not sufficient as well.Against the deficiencies in local social assistance governance,in the future,first,local organization law shall be ameliorated,i.e.,the authority boundary between central and local government,the the authority boundary between differnet levels of local government shall be specified through legislation means;the authority of local administrative agencies,especially civil affairs department,shall be prescribed by law.Second,administrative procedural law shall be ameliorated,which include the procedural rules that are related to the formation and operation of law order,public private partnership,and etc.Third,the organ of state power’s supervisory mechanism shall be strengthened.The organ of state power’s supervision shall be strengthened through promoting deputies’ quality,bringring the time schedule of review forward,detailing the content of the draft,activating existing supervisory mechanisms,and etc.Fourth,philanthropic regime shall be reformed.The official charitable organization deadministration reform shall be promoted and the tax benefits system for philanthropy shall be perfected.Fifth,accountability system,including administrative litigation,administrative review and administrative accountability,shall be perfected.In a word,we shall keep on holding the wel-being of people’s livelihood,the fundamental rights of citizens,human dignit and “human values” as our creed,and constantly advance the rule of law process of social assistance local governance from the perspectivs of setting and enforcement of laws,bringing the lawbreaker to accounat,offering relief to the persons who got infringed,and etc. |
