Analysis Of Zhang Shizhang's Administrative Adjudication Idea

Zhang Shizhao, aliased yanxing was a famous politician, scholar and lawyer. He quitted education in school at an early age, took part in revolution for a long time alone, then was arrested and sent into prison. Immediately after that, he exiled and studied in England. Zhang repatriated at the early stage of the Republic of China, chiefly editing <People's Setting Up Newspaper>, then establishing <Independence Weekly> and <Jia Yin> and so on, to propaganda the idea of democratic constitutionalism. There were more and more fierce discussions about administrative adjudication in China along with the legislative actions at the end of Qing dynasty and at the beginning of the Republic of China. At that time, most of our people yearned for the political and legal institutions of Japan, France and German after which they wanted to follow. The mainstream opinion of administrative adjudication tended to intimate France to establish independent administrative adjudication agency, which would manage the administrative suits specially. However, zhang who had received English legal thought inclined to the opposite opinion, that was to confer the common judicial authority to judge the administrative disputes, on the other hand, separate administrative adjudication agency and special administrative codes regulating the relationships between administrative agencies and common people were not necessary.The misreading of the thought of power's devision, the opinion of government officials'privilege, together with special historical and political ingredients, all of which as to zhang's opinion contributed to the French administrative regime. The French administrative adjudication institution meant injuries to people's liberty to resort to common court when their legal rights were damaged, as well as injuries to legal doctrine of equity, these would serve severe obstacles in Chinese progress of setting up equal and free country.Zhang classified the application of administrative law into two kinds: one was the administrative law governing the relationships between officials, which he called"The law of a class"; the other one was the administrative law governing the relationships between officials and people, which could be called"statute of officials and people"for the time being. He tended to think the"The law of a class"that was indispensable to legal system existed in both the continental law system and the common law system. The what so called administrative law governing officials and people, that was"law of privilege", grounded in two basises: firstly, the government and the officials, being the representatives of the people, enjoyed special powers, which were enough to take them specially; secondly was the principle alleged by French, called the principle of"separation of powers", namely, the administrative power should not be intervened by the judicial power. Because of the foregoing ingredients, the administrative law of this kind set up a wide gap between government officials and common people, officials had the privileges that common people could not have. As a result, if the constitutional rights of common people confronted with the officials'privileges, the former could not be protected and maintained, but only to give way to the latter. For this reason, zhang denied the administrative law of this kind, which should not be established.Having denied how the administrative law should exist, the French idea of administrative adjudication had no basis of legal regulations. Underlying on the basic principles of constitutional theory, zhang reputed the French administrative adjudication institution thoroughly from three facets: that was the individual freedom and rights, the idea of judicial equity and the idea of powers'division. In his opinion, the administrative adjudication institution offered an opportunity for officials to escape from the common court's judgment, which would consequently infringe people's basic rights to recourse to common judicial agencies, and this violated the basic constitutional principle to protect citizen's freedom and rights. In fact, the shield the administrative adjudication institution supplied for officials conferred them a kind of privilege, because of which the officials and citizens were in unequal status, and this situation served an infringement to the principle of judicial equity. The French idea of powers'division on which its administrative adjudication institution relied was nothing but a misinterpretation of English idea of"three kinds of powers'separation".Tracing to the fountainhead, the equal legal opinion and the thought of liberalism that zhang had insisted on were just the essential theoretical reason for him to rebut French administrative adjudication institution. Because he was influenced by English thought of liberalism deeply, he paid much attention to the protection of individual freedom and rights, also to the judicial equity. What in his opinion from the beginning to the end was that the government's and officials'privileges caused by the French administrative adjudication institution was a breachment of citizen's right to appeal to the judicial system, and these privileges would do harm to the judicial equity inevitably.