The Research On The Law Regulation Of Administrative Guidance

With the expansion of executive power, the diversity and the flexibility of administrative guidance are in line with the needs of modern market economy, Its flexibility and mildness are in favor with many countries. Japan is the first country to promote administrative guidance which is widely used and also has produced effect in reform and open policy's market economy. Our country initiates the flexible government vigorously, however, in the period from traditional executive order to the service-oriented administration mode, administrative guidance is not consistent with the ideal state. To provide administrative guidance is a dynamic, continuing course which reflects a strong executive power color. Administrative guidance often tends to the corruption and abuse of the executive power in practice. Coupled with the Low level of legal standardization to administrative guidance, administrative body's discretion is in a large space. There is no clear legal authority, which provides a breeding ground for abuse of the administrative body's discretion. Administrative guidance at this time will further aggravate the abuse of power. In practice, as the administrative body is known for its financial, human, information advantages, administrative guidance is often still with the de facto coercive power. Certainly the legitimate interests of the administrative counterpart will be undermined. So we need to explore the legal regulation of administrative guidance, to control abuse of administrative power, inhibit the excessive expansion of executive power and to protect vulnerable parties'legal rights.Legal regulation of administrative guidance is not blindly absolute to control of executive power. But under the current law, administrative guidance can be properly standardized, legalized and ought to play its normal state functions. A balanced state should be reached between people's private rights and administrative power. For this article, first the basic theory of administrative guidance is outlined. Administrative guidance should be viewed as a dynamic, continuing process, which firstly just is real action, but the main purpose of administrative guidance is not just to work out the administrative guidance. When accepted by administrative counterpart, the administrative guidance is transformed into acts of administrative law, which is a kind of administrative act without coercive power. Administrative guidance easily leads to abuse of power because of the great discretion. Based on protection of the trust interests, the requirements of administrative law, the legal regulation of administrative guidance should be urgently concerned, while which is still immature in China at present. So the author has researched chief foreign history of legal regulation. The first country to implement administrative guidance is Japan, since Japan's administrative guidance earlier history, many of its research, the experience to legal regulation of administrative guidance in a more adequate. United States, as a common law country, the past exclusion attitude of its administrative guidance has been changed. In practice, The administrative guidance has been incorporated into the judicial review cases; Finally, Germany has learned its related systems in Japan, "Federal German Administrative Procedure Act," is passed in 1976, This act clearly states the operation of administrative guidance and procedures. It is emphasized that on the principles of legality and proportionality, and the concept of balance of interests. Learn from foreign experience, and analyse the status of the administrative guidance, put forward proposals.