On The Legal System Of Administrative Whistleblowing

In recent years,the phenomenon of citizens reporting to administrative organs in the field of administration is more prominent.A legal system called "administrative whistleblowing"is rising and developing.Specifically,as a typical information tool,administrative whistleblowing is a system category in which the informant discloses other people’s suspected violation of the law and the administrative organ makes regulations.Informants break through the functional division of governance through information sharing,and unblock the information exchange channel between "citizens and government",so as to build a cooperative co governance pattern under order administration.In other words,since the administrative organs are not enough to implement comprehensive and effective supervision on a large number of law enforcement objects,it is advisable to encourage the public to participate in them and jointly govern the misconduct in the administrative field.In view of this important administrative legal system,this paper uses the perspective of administrative law to make a panoramic discussion on its theory,norms,system,operation and optimization.Administrative whistleblowing is an important and complicated legal phenomenon in the government governance.Administrative whistleblowing has become a useful channel for information sources of administrative law enforcement.There are reporting matters in most administrative fields,such as industry and commerce,food,taxation,transportation and so on,which show the characteristics of public welfare,universality and interaction.As far as the origin of the system is concerned,administrative whistleblowing in the modern sense has a deep origin with the culture of reporting,reporting and exposing in history,and is deeply influenced by the procuratorial reporting system since the reform and opening up.In the dimension of legal attribute,administrative whistleblowing can be defined as a legal act to assist or urge administrative organs to perform their statutory duties,which can affect the effect of public law in fact.In terms of the practical situation of functionalism,administrative whistleblowing can make up for the limitation of administrative law enforcement resources,enrich the expression of rights and interests,and promote the construction of collaborative administrative supervision system.In the academic level,administrative whistleblowing has a profound and diverse theoretical foundation,such as public-private cooperation,citizen participation in administration,administrative efficiency and so on.From the perspective of legal relationship,administrative legal relationship has an interpretive effect on the interest structure of the subject of administrative whistleblowing.As a matter of fact,the legal system of administrative whistleblowing should be based on basic norms.Only in this way can we make clear the source of the rights of the informant and determine the basis for the administrative organ to perform the duty of reporting.The legal system of administrative whistleblowing is the key basis.We can focus on the normative chain of constitution,legal norms and other administrative normative documents.First,the basis of the constitution.It is not uncommon for academic circles to hold the view that "administrative whistleblowing is a right granted to citizens by the constitution".Article 41 of the constitution is generally regarded as the realistic basis for the creation of administrative whistleblowing.However,the right of supervision stipulated in Article 41 only stipulates the right of citizens to supervise the public power,and there are some doubts in deriving the right of administrative whistleblowing.Combined with the analysis of the constitutional mechanism,the article 2 "right to participate in management" clause,Article 27 "listening to opinions" clause and Article 35 "freedom of speech" clause of the constitution are the norm group for deriving the constitutional basis of administrative whistleblowing.Second,legal norms.From the standpoint of the administrative organ,there should be sufficient legal basis for handling the reported matter,such as whether the field or industry involved in the matter is a statutory duty.At present,the concept of"reporting" in legal norms has multi-dimensional expression,which is reflected in the legislative mode of decentralized management.This mode is not only caused by empirical legislative thinking,but also affected by the characteristics of practical administrative affairs.Third,the basis of other administrative norms.In the face of the increasing number of reported incidents,the central and local governments at all levels have issued a large number of administrative normative documents,which provide a basis for the governance of reported matters.Handling reports according to documents has the realistic motivation of "document politics" and filling in the legislative effect,and also faces the challenge of"non-standard" problem.Based on the combing of the normative basis,we can build the legal system framework of administrative whistleblowing.If there is no corresponding system to coordinate the functions of administrative organs and the concerns of informers,the cooperation chain between administrative organs and informers will not be strong.As far as the formal structure is concerned,there is a logical structure of "individual knows the information of the report-individual discloses it to the administrative organ-the administrative organ deals with it".From the existing reporting process,a relatively complete legal system of administrative whistleblowing includes at least three aspects:the initiation of informants,the handling of administrative organs and the support of mechanism.The subject and object of the report are relatively extensive.The informant can report illegal acts,improper acts affecting public interests,objective facts affecting public interests,etc.,and classify the matters according to different standards.How to identify and deal with the matters pointed to by the administrative whistleblowing is the fundamental foothold of realizing the value of the system,so the corresponding procedural rules of acceptance,investigation and disposal are essential guarantee.In order to encourage the behavior of informers and ensure the long-term,orderly and standardized development of the system,the matching realization mechanism is also indispensable.Administrative whistleblowing is a typical "double-edged sword".Although it brings obvious institutional advantages,its side effects can not be ignored.With the help of the research theory of Sociology of law,we can examine the shaping effect of administrative whistleblowing on social reality,and examine the realistic prospect of system operation from the changing trend of social order.On the whole,the implementation of administrative whistleblowing has achieved good results,such as gradually expanding the scope of whistleblowing,whistleblowing behavior is more positive.Through the implementation of measures by local administrative organs,it seems that a "social governance model of administrative whistleblowing" has been formed.In the interaction between administrative organs and informants,a new set of rules system has been formed,which responds to the needs of social governance innovation.However,the legal system also faces obvious deficiencies,especially the change from cooperation to conflict between informers and administrative organs.This kind of conflict can be divided into two levels:implicit conflict and explicit conflict.Implicit conflict is the behavior of one side against the other side,while explicit conflict is the contradiction between the two sides in law enforcement disputes and administrative disputes.In order to promote the sound development of the legal system of administrative whistleblowing,we should put forward a systematic optimization scheme to achieve the goal of effective operation on the track of cooperation.Before that,we should start from the perspective of system positioning and essential characteristics,and advocate the dual value rationality of "security theory" and "boundary theory".The purpose of "security theory" is to promote the participation of informants through security,and promote the achievement of social governance effect through participation mechanism;while"boundary theory" is to declare the limitation of administrative whistleblowing and recognize the cooperation limit between informants and administrative organs.As for the optimization path of the system,the basic strategy can follow the steps of "legislation→administration→judicature".First,at the legislative level,the legislative concept of administrative whistleblowing should be changed from decentralization to unification,and special laws should be formulated timely to effectively guide the legalization of all kinds of subject behaviors.Second,at the administrative level,the system optimization is carried out around the goal of "the best" of handling administrative reports,and the state most in line with the administrative purpose is achieved through the dual ways of management and politics.Third,at the judicial level,it discusses the plaintiffs qualification,the scope of cases,the exercise of the right of action and other issues by using the legitimacy review rules,so as to provide effective judicial guidance for the supervision of administration,right relief and conflict resolution.