Research On The Absence And Perfection Measures Of Legislation Relating To Administrative Institutions

In the modern law, the organizational law belongs to the basic law of a nation, and it plays an important role in the legal systems among various countries. With the new public management theory coming into vogue, every country is attaching even more importance to the theory of administrative organizational law. In addition, the multiplicity of administrative main body, legalization of administrative management, and routinization of administrative legalization are becoming the basic direction of reform in administrative organizational law. During the process of reform in administrative system, the perfect administrative organizational law also serves as one of important legal guarantees to guide the reform to move forward. However, due to the durance of philosophy and mode of traditional administrative management, the administrative organizational law, for a long time, has not formed an independent discipline in the field of jurisprudential study in our country. In the legislative practices of administrative organizational law, the construction of administrative organizational law system has also been neglected, and thus seriously affected the administrative legalization and democratization process in China.The absence of administrative organizational law in China has been one of the growing concerns in the academic circle in recent years. It is generally believed in the academic circle that the relevant laws and regulations system in China's current administrative organizational law are not very perfect. In other word, it is far from the requirement in terms of establishing sound administrative organizational law system. It is prominently manifested in such phenomena as critical shortage of legislation, coarse legal provisions, shortage of law-governing and rational spirit, absence of terms, undefined legislative subject, etc. For example, the Organic Law of the State Council was passed at the Fifth Plenary Session of Fifth National People's Congress in 1982. However, it has never been revised for over 30 years, and a dozen of institutions directly under the State Council have not actually been reflected in the Organic Law of the State Council. All these have affected the authority and the effectiveness of administrative organizational law to a great extent.As for the establishment of sound administrative organizational law, the most important thing is that both the academic circle and the legislative main body should strengthen the research on the theory and the practice of administrative organizational law. In this aspect, the western developed countries, in their process of studying and formulating administrative organizational law, have also already got rid of the thinking model of traditional administrative management, and finalized the transition to new public management philosophy. In this paper, the author borrow ideas from the theory of public management, breaks through the limitations on the traditional research of administrative organizational law, and integrates social public administrative sectors into the range of study. By using such practice for reference as that service of administrative philosophy, multiplicity of administrative main body, and publicity of administrative proceedings are uniformly absorbed in the theory of new public administrative management among western developed countries, it is possible to enable the rational joint between administrative organizational law and public administrative management, and finalize the transition from management-based government to law-governing government.It is believed in this paper that many research results still remain under the philosophy of traditional administrative management with regard to the current cognition of administrative organizational law. In other word, the controlling of power still serves as the core guiding ideology, the administrative organizational law only refers to the organization law of administrative organ. That is, the administrative organizational law is recognized only from narrow point of view, which by no means provides powerful support for the construction of a law-governing country and administration according to law. Embarking from the perspective of developing socialist democracy legal system, establishing and perfecting the guarantee system for administration according to law, and further deepening the reform of administrative system, many important contents, including the legislation on administrative establishment, legislation on administrative proceedings, and the determination of the main body of legislation relating to administrative institutions and many other administrative organizational laws are uniformly established in the foundation of administrative organizational law in its broad sense. Therefore, this paper plans take the generalized administrative organizational law as its basis in order to expound on the merits and demerits obtained in the legislative practice of administrative organizational law, find out, analyze, solve the problems, and thus lay a solid foundation for the study, perfection and reform of administrative organizational law. This paper talks about the legislation process of administrative organizational law since the establishment of new China, justifies the consequences of legislation, and furthermore, systematically summarizes the outstanding problems encountered in the legislative study of administrative organizational law, and enables it to break away from the scenario in terms of only serving as"Law of Administrative Organ"and functioning at lower level. Moreover, this paper also analyzes the deep-rooted causes for long-term negligence, borrows the ideas from the legislative achievements in administrative organizational law among foreign developed countries, proposes target-oriented recommendations, like the proposal on formulation of Basic Law of Administrative Institution, Administrative Staffing Law and Law of Social Public Administrative Organization and put forward constructive suggestions for the establishment of the legislation model and system, basic framework and levels of administrative organizational law.