Administrative Retention And Its Restriction Of China

The theoretical basis of the administrative retention is separation of powers, andthe real basis of the administrative retention is the complexity of social affairs. In thisthesis, the connotation of administrative retention gets a appropriate correction andtransformation, and the extension of administrative retention gains a modestexpansion at the same time, basically formed a concept system of administrativeretention with a relatively thorough connotation, a relatively clear level and arelatively sound extension. The concept system encompasses three level of meaningsand include two kind of types, namely, administrative retention on the system leveland administrative retention on the execution level. The former includes absoluteadministrative retention and relative administrative retention, the latter includes theadministrative retention resulted from implementation of the Constitution and theadministrative retention resulted from implementation of the laws.Considering the levels of system and execution, the administrative retention isexisted in China. There are mainly several characteristics in administrative retentionof China: Firstly, the administrative retention of China is based on the system ofpeople’s congresses. Secondly, the administrative retention of China covers a broaderrange of content, and belongs to the most broadly administrative retention. There areno space and room to accommodate so-called "special power relations" in China. Forthe right of administrative norm-setting, we shouldn’t generally treat it in the sameway, should treat it with different views under the specific circumstances. Theadministration retention in current China with a rich content includes administrativeretention from the system level and administrative retention from the executive level.There are four reasons for restriction of administrative retention: the first, strong expansion of executive power results in the weakening of its external oversight; thesecond, it is benefit for pursuit of substantive justice in order to better protect humanrights; the third, it is benefit to improve administrative means to improveadministrative efficiency; the forth, it has an irreplaceable unique advantages andsignificance on oversight of executive power. There are four features of administrativeretention in China: First, only the executive power itself can restrict administrativeretention areas in the subjects of restriction, and second, we should adhere to areasonable principle in the limits of restriction resulted in the promotion of maximumadministrative efficiency.The paths of administrative retention have three levels: the administrativerestriction in advance, the administrative restriction in mid and the administrativesupervision afterwards. The former includes refinement and interpretation ofadministrative norms, and institutionalized of administrative practice. the latterincludes administrative supervision and audit which belong to special supervision andadministrative reconsideration, reporting, enforcement inspection, examination andapproval, the record check, assessment discipline and so on which belongs to levelsupervision.