On The Legal Regulation Of Administrative Charge

Administrative charge means a detailed administrative behavior that administrative organ and other organizations enjoying the rights of administrative charge according to law, based on the specific legal fact of administrative charge, according to the provisions of the laws and regulations, collect a certain amount of currency from the specific beneficial opposite person for administration. Administrative charge is taking the rights of administrative charge as the core, taking the realization of public interests as the purpose, taking the implementation of administrative service (administration) as premise, and taking the rights and obligation of charges as the content. In our country, administrative charge system has lasted for a long time, as an important component element of fiscal revenue; administrative charge has made an outstanding contribution to the past and present finance of the government in all levels of our country. In addition, its specific fiscal function and the current actual condition of our country determine that administrative charge will play a role of fiscal function for a long time in the future. However, what inevitable is that, due to our country's administrative charge exists the issue of lagging institution of law and many other issues causes the rights of administrative charge are abused wantonly, the phenomenon of arbitrary charges becomes more and more serous, and administrative charge is in disorder status for a long time. Although those phenomena have been controlled and integrated for many times, there is little good results. On the contrary, it is in a vicious circle of control--inflation--re-- control--re-inflation. Therefore, it is necessary to perfect administrative charge system and to strengthen legal regulation of administrative charge. By the view of administrative law, this paper defines the concept of administrative charge, analyzes the attribute of administrative charge, elaborates the necessity of administrative charge, distinguishes relative concepts, and gives the basic outline of administrative charge rounding administrative rights. Meanwhile, combining with the issues existed in current administrative charge to analyze the root of its emergence, and discuss on how to construct the systematized administrative charge legal regulation system of our country.This paper is divided into four parts:The first part elaborates the concept, characteristic, necessity, and the differences and similarities of relating to other concepts of administrative charge. And in this part, it is taking the administrative rights as the core, taking legality as guaranty and taking the rights and obligations as the content to give the concept of administrative charge; and starting from this concept to extend the administrative attribute of administrative charge. Through analyzing this administrative attribute, it is indicated the substance that administrative charge using administrative rights to force and deprive the property right of opposite person for administration according to law, proposed the concept that the key of regulating administrative charge is depended on strictly and effectively standardizing and restricting the public power behind administrative charge, established the foundation for legal regulation of administrative charge. In the meantime of analyzing the administrative attribute of administrative charge, it is discussed the value attribute of administrative charge in the aspect of efficiency attribute, compensatory attribute, remedy attribute, confirmation (delimitation) attribute, and made further intension on administrative charge. Combining administrative charge with the effect on shortening the gap and unifying administrative power, financial power and financial strength, and the basic national condition of our country, analyze necessity existed in administrative charge, and through distinguishing administrative charge with other relative concepts to clarify the extension of administrative charge for further.The second part introduces and lists the issues existed in administrative charge of our country. Adopting classification method, this paper respectively generalizes and lists from the issues existed in the aspect of charge subject, charge reference, charge establishment, charge collection, finance management, charge supervision and etc. At present, the issues on the administrative charge of our country is mainly reflected on various disorderly statuses such as numerous and jumbled charge subject, large amount of reference, low effectiveness and overlapping organizations; the established items are various and short of scientific reference, randomness of charge collection great, charge scope inflated, capital application is lacking of supervision, the phenomenon of using funds without authorization and embezzlement of public funds are commonplace, supervisory mechanism is weak, and supervision and control are just form.The third part analyzes the contributing factors existed in administrative charge of our country from the root by the view of history, society and system. In the aspect of historical root, although administrative charge is a concept appeared in modern times, administrative charge has been in ancient times. Administrative charge is a method relieving the confliction of financial cash flow balance and effective means for expanding fiscal revenue from ancient times, but the status of much expenditure and heavy expenditure is also at the same time;in the aspect of social roots, the contradiction between the requirements of the development of economic society with the limitation of capital rising of the government and the current situation of bloated sector, inflated power and interest drive, stimulate fast growth of administrative charge;in the aspect of system root, the separation of powers in central government and local government is different. In the situation of that expanded administrative powers, limited financial rights and insufficient financial power, it should be always set charging items, standard of approval and charging, and length of charging on the basis of requirements, so that the scale of charging expands rapidly. While dislocation of administrative system and omission of legal system separate administrative charge from legal track, tax collection and tax payment are out of control at random, and supervision and control are loose and without strength, which intensify disordered charging.The fourth part is the keystone of the whole paper, discussing on constructing legal regulation system of administrative charge. In order to avoid the current control mode of treating the place where aching that adopting one--sided centralized clear, this paper raises the proposition constructing legal regulation system of administrative charge from confirming the charging subjects, charging principles and charging establishment to set strict demands on tax collection and tax payment, charging supervision, charging responsibility and legal remedy through objective analysis on the issues existed in administrative charge. In the aspect of the subject, it is to limit the scope of the subject (implementing subject) of administrative charge into the administrative authorities exercising the power of administrative charge according to constitutional law or constituent act and non--administrative authorities exercising specific power of administrative charge according to detailed laws and regulations. Meanwhile, based on the situation of arbitary charges engaged by the organization itself that receiving the administrative authorities'delegation to charge, it is advocated that the relative responsibilities should be undertaken by the administrative authorities according to the specificity of administrative power. In the aspect of principle, including legal principle and reasonable principle, the legal principles require that the power of administrative charge must be produced according to law, the power of administrative charge must be implemented according to law, the charging subjects must undertake relative legal responsibilities for illegal behavior of administrative charge, charging behavior must be overall supervised including the supervision of the NPC, administrative supervision, judicial supervision, and social supervision. Rational principles require that the establishment and implementation of administrative charge should fully consider relevant elements; the motive must meet public interests and the administrative purpose, adapt to the capacity for acceptance of administrative adressat, and have reasonable charging procedure. In the aspect of setting, refer to the relative regulations of Administrative Permission Law, it is limited the setting subjects of administrative charge within the NPC and its Standing Committee, the State Council, Provincial People's Congress and its Standing Committee, and provincial people's governments. It is proposed that while fully considering the elements of nature of the items, efficiency of the charges, practical control of the government, requirement of the social equity, it should properly have a system of public hearing, establishing relevant project of administrative charge with efficiency, compensatory, chastening and conformability. In the aspect of tax collection and tax payment, it is proposed to build charging model system that is a legal reference of administrative charge that the subject is set by administrative charge and exposed by legal form to the society and implementing subjects, and the established items, standard and procedure, constructing the separation of power system, introducing bank collecting mechanism, and implementing budget control of the charging capital. The construction of power informing system means that the adressat has been informed having the rights of opposition, statement, averment and instituting an action while charging implementing subject makes a decision of charging simultaneously. In the aspect of supervision, emphasizing power supervision is to develop the legal supervisory role of the organs of power in each level and to fully supervising on the establishment of charges, tax collection and tax payment. Through financial and auditing department and charging higher authorities to perform the duty of supervision, to strengthen administrative supervision strength of administrative charge and to develop the advantages of judicial relief provided by judicial authority; through checking the legality of administrative charge to develop the efforts of the judicial supervision; meanwhile, through communicating feedback channel to build socialized supervision system. In the aspect of responsibility, it is emphasized mastering power must undertake the responsibility, through applying administrative legal responsibility and criminal legal responsibility to strengthen accountability strength, add illegal charging cost, and effectively restrict arbitrary charges. In the aspect of remedy, it is proposed to expand remedy channel, through establishing preliminary procedure of reconsideration of administrative charge to positively develop the remedy advantages of the administrative authorities; at the same time, through adding alteration rights and other judicial approval means to guarantee the efficiency of judicial relief.