Tisch
Recently, the bureau organized a learning activity of "three studies, three defenses and three norms", which benefited me a lot. Let me talk about some experiences after learning the Administrative Licensing Law.
Administrative license is an important means for * * * organs to manage economic and social affairs, which is related to the vital interests of the people, the relationship between * * * and the people, and the overall work of * * *. The administrative licensing right is used well, which benefits the country and the people; Poor use will affect civil rights and the relationship between * * * and the people will also be affected. For a long time, due to the lack of effective institutional constraints, unauthorized licensing and abuse of licensing rights have occurred from time to time. "It is difficult to enter the door, ugly face and difficult things" has once become a hot and difficult issue of social concern, and the people are eagerly looking forward to the reform of the administrative licensing system. Since 1998, in line with the public opinion and the current situation, various localities have successively reformed the administrative examination and approval system, canceled a number of administrative licensing examination and approval items, and standardized the administrative licensing behavior. There are fewer projects, simpler procedures and shorter time limit. For a time, various convenience measures have mushroomed, and new licensing methods such as accreditation hall, service hall, one-stop service and online processing have become the focus of media tracking and people's attention. 200 1 the State Council begins the reform of administrative examination and approval system. On the basis of summing up practical experience and drawing lessons from foreign common practices, after seven years of drafting and deliberation, the Administrative Licensing Law with China characteristics was formed. It reflects that our understanding of the standardization of administrative license has reached a new height, marks that administration according to law has entered a new stage, embodies the new requirements of socialist political civilization construction, and will have a great and far-reaching impact on the management of * * * in China.
As an important law to regulate the behavior of * * * *, the Administrative Licensing Law adheres to the people-oriented principle, conforms to the requirements of the coordinated development of economy, society and ecological environment, follows the principles of legality, reasonableness, convenience, efficiency and supervision, puts institutional innovation in a prominent position, and comprehensively regulates the setting, implementation subject and procedure, supervision and inspection and legal responsibility of administrative licensing. The Administrative Licensing Law clarifies what can and cannot be granted administrative licensing by properly handling the relationship between * * * and the market, between * * * and society, and between public power and private rights. This prevents the excessive interference of administrative license as public power in social and economic life and citizens' personal life, and is conducive to the transformation of * * * functions and the innovation of * * * management methods.
The Administrative Licensing Law stipulates that only the National People's Congress and its federations, the State Council and provincial local people's congresses and their federations can set administrative licenses according to law, and provincial people's governments can set temporary administrative licenses according to legal conditions, and no other state organ can set administrative licenses. These regulations are conducive to changing the current situation of excessive administrative licenses from the source, maintaining the unity of the legal system and ensuring the smooth implementation of government decrees.
The Administrative Licensing Law stipulates the disclosure system of the basis, implementation process and results of administrative licensing, which is conducive to reducing the "black-box operation" of administrative organs, preventing the abuse of administrative power, and ensuring the public's knowledge, participation and supervision of administrative licensing behavior.
The Administrative Licensing Law stipulates the main system of implementing administrative licensing, the relatively centralized system of administrative licensing right, the system of "one window to the outside world" and the system of unified, joint and centralized handling, and regulates the application, acceptance, examination and legal procedures and time limit of administrative licensing. This is conducive to the administrative organs to establish a sense of service, improve work style, improve work efficiency, and ensure that the work of * * * can better realize and safeguard the best interests of the overwhelming majority of the people.
The Administrative Licensing Law stipulates strict legal liability for the acts of violating the law, exceeding the authority and not complying with legal procedures in implementing administrative licensing. This is conducive to strengthening the sense of responsibility of administrative organs, ensuring the unity of powers and responsibilities, and truly ensuring that the right must be responsible, the right to use is supervised, and the infringement is compensated.
The implementation of the Administrative Licensing Law involves the innovation of management concepts, and its established principles and a series of systems are significant changes and innovations to the current administrative licensing system. For a long time, the supervision and management of administrative license have been decoupled, power and responsibility have been decoupled, and power and interests have been linked; However, the administrative licensing law to be implemented soon puts forward the opposite requirement. For another example, the approval of the police has been rampant in China's administrative field for a long time. In a sense, the examination and approval of the sliver is an administrative license, and the Administrative License Law is to control the sliver project. Therefore, the implementation of the Administrative Licensing Law will "weaken power, touch interests and increase responsibilities". In the face of such a revolutionary change, the legal institution of * * * should first take the lead in studying this law, accurately understand and correctly grasp this law, and help change the ideological concepts that are not suitable for the spirit of the Administrative Licensing Law in the field of * * *. This is indeed an arduous task for the legal institution of * * *.
It is the duty of legal institutions at all levels to safeguard the unity of the national legal system and ensure the smooth implementation of government decrees. In accordance with the provisions of the Administrative Licensing Law, the provisions on administrative licensing in administrative regulations, the State Council departmental rules or regulatory documents, relevant local regulations or regulatory documents shall be cleaned up. * * * Legal institutions should not only clean up the contents that are inconsistent with the administrative licensing law, but also clean up the subjects that cannot be authorized to implement administrative licensing. According to the provisions of the Administrative Licensing Law, administrative licensing can only be implemented by administrative organs in principle, and organizations that are not administrative organs may not exercise the right to implement administrative licensing without the authorization of laws and regulations. However, the legal institutions in some places are very weak in the local area. During the last institutional reform, some legal institutions at the county and city levels were basically merged. Although the administrative licensing law gives the legal institution of * * * quite heavy functions, how to clean up the counties and cities without legal institutions? If there is no professional legal worker to help clean up the local area, the Administrative Licensing Law is likely to become a dead letter in the local area. It is difficult to clean up the main body, because the legal institutions in this field are difficult to compile. If the authority of the legal institution is uncertain, it is impossible to clean up the administrative license and the subject of administrative license implementation. It is an important part of the work of local people at or above the county level to strengthen the supervision and inspection of the implementation of the administrative licensing law, and it is also an important duty of the administrative licensing law. * * * Legal institutions, as legal advisers of * * *, must assist * * * and * * * departments at the corresponding level to establish and improve relevant supervision systems and strengthen supervision over the implementation of administrative licenses. This requires administrative leaders at all levels to realize the importance of administrative licensing law in the process of promoting the general plan of governing the country according to law and support the work of legal institutions. Undeniably, the Administrative Licensing Law is a law to control or reduce power, and few leaders are willing to weaken the power of administrative examination and approval. If the leaders of * * * can't reach a high level of understanding and legal awareness of the Administrative Licensing Law, then the legal institutions of * * * can't accomplish this mission no matter how hard they try. Therefore, we should innovate a supervision mechanism to implement the administrative licensing law, so that the legal institutions of * * * can exercise their supervision power independently. Let the farce of arbitrarily canceling and flouting the legal institutions of * * * stop the old saying: it is not difficult to legislate, but it is difficult to enforce the law. Implementing the administrative licensing law is an important responsibility of all levels and departments. We firmly believe that as long as * * * and * * * departments at all levels, especially leading cadres, practice the important thought of * * *, persist in governing for the people, comprehensively promote administration according to law, fully understand the importance and urgency of implementing the Administrative Licensing Law, enhance their consciousness and initiative, and work hard, we will certainly be able to implement this law well, and through the implementation of this law, accelerate the transformation of * * * functions and management methods.
extreme
Administration according to law is the key to governing the country according to law, but administration according to law itself is not the same as the rule of law. Because of the different understanding of the rule of law, the forms of administration according to law are often varied.
First, the connotation of administrative rule of law
First, the principle of supremacy of law. In administration according to law, the principle of supremacy of law mainly includes the following contents: 1. Law is the highest criterion of administration according to law. 2. Administration according to law. The legal acts of * * * must have a legal basis. In the absence of legal provisions, administrative organs have no right to move freely like citizens. 3. The principle of legality. The scope and content of administrative acts must be prescribed by law. 4. Ensuring the implementation principle, the administrative organ must ensure the implementation of the law with its own actions. The duty of the administrative organ is to implement and enforce the law. For the administrative organ, it not only has the negative obligation to abide by the law, but also has the positive obligation to take action to ensure the implementation of the law.
Second, the principle of due process. Program is the guarantee of entity. Without the norms of due process, it is difficult to realize the supremacy of law required by administrative rule of law. Therefore, the requirement of administrative rule of law for the supremacy of law must be realized through due process.
Third, the principle of fair relief. Administration according to law means that the administrative counterpart can correct the administrative infringement in time and effectively through legal channels, that is, there must be fair and effective administrative relief.
Second, administrative control power governs the country according to law.
The formulation of administration according to law in China came into being under the background of "ruling the country according to law and building a socialist country ruled by law". If the essence of governing the country according to law is to govern power according to law, then administration according to law, which embodies the essential requirements of governing the country according to law, must take administrative control power as its essential content, which is the essential feature of administration according to law in China.
Third, the concrete steps towards administrative rule of law.
1, improve the efficiency of administrative law enforcement. If it is said that there are laws to follow, then there are laws to follow, law enforcement must be strict, and violators must be prosecuted, which is the key to administrative law enforcement. The 15th National Congress of the Communist Party of China pointed out: "All * * * organs must be administered according to law, effectively protect citizens' rights, and implement the law enforcement responsibility system and appraisal system. Closely combine administration according to law with the protection of human rights. Administrative law enforcement is the most active, frequent, universal and direct use of all kinds of state power, and it has the closest relationship with citizens, legal persons and other organizations, so it is the most vulnerable to infringement. In the past, the sense of responsibility of administrative organs was weak. Administrative power must obey the presupposition of law, and the administrative power of law is in a dominant and controlling position locally. It is very important for administrative organs to actively play their management and service functions, rationally use their discretion and establish a new image of administrative organs.
2. Improve the quality of civil servants. Civil servants are the main body of administration according to law and represent the image of the country. The quality of law enforcement will affect the success or failure of the whole western development. Abiding by the law and protecting the law are the most basic obligations of a citizen. Only when the legal awareness of the whole people is enhanced can administrative law enforcement have a broad foundation.
In short, administrative organs should actively play their management and service functions, properly use their discretion and improve administrative efficiency. We must adhere to the principles of rule of law, supremacy of law, due process and civil relief. Establish a legal system of administration according to law, strengthen the concept of administration according to law, and play a guiding and bridging role in realizing the rule of law.
Tisso
The principle of "no more punishment for one thing" has not been fully clarified in theoretical research and legislative practice in China, which has led to some confusion and contradictions in administrative practice.
First, the expression of the subject of punishment of "no more punishment for one thing" in the Administrative Punishment Law lacks unique certainty. There is no clear stipulation on which administrative organ should be punished for violating administrative regulations over which several organs have jurisdiction. For example, some rules and regulations stipulate that an illegal act can be handled by several organs. At the same time, whether out of reality or jurisprudence, the relative person is not allowed to choose the subject of punishment. Therefore, due to the unclear division of departmental interests, powers and responsibilities, and insufficient coordination among organs, there has been a legal contradiction in practice in which different administrative organs implement one kind of administrative punishment respectively, which in fact produces "multiple punishment for one thing", which conforms to the legal principle in form, but deviates from the inherent value requirements of this principle. It is called the concurrence of the subjects of administrative punishment. This is undoubtedly inconsistent with the pursuit of administrative unity, administrative rule of law and administrative management value.
Second, the principle of "no punishment for one thing" in the administrative punishment law does not provide suitable conflict application rules for conflicts when applying laws and regulations. With the development of administrative legal system, the formulation of laws and regulations, and the increasingly detailed adjustment and protection of social relations, an act that violates administrative regulations may lead to the consequences of infringing on different social interests. At this time, there may be a phenomenon that all the special laws protecting different interest objects are applicable to this behavior, and at the same time, several different legal responsibilities and legal consequences are produced. It is called concurrence of laws and regulations. At this time, if we make several different punishment decisions for the counterpart according to different legal provisions, it is obviously a violation of the principle that "an act shall not be punished more than twice", and it can also be manifested as several punishments here, but there will definitely be a time sequence between punishments, and the objective performance is also different. If only one punishment decision is made, it will often face the difficult situation that there is no superior law between the general law and the general law, and it is difficult to decide which one to apply. This situation has brought difficulties in the practice of administrative law enforcement to the punishment management of administrative subjects.
Three, the principle of "no punishment for one thing" in the administrative punishment law does not provide legal guidance for different administrative subjects to have the right to punish and have the same administrative functions. I think this is another special manifestation of the concurrence of administrative punishment subjects. Due to the development of market economy, there has been a great circulation of logistics, people flow, capital flow and intellectual achievements throughout the country and even around the world. After an illegal act is punished by an administrative subject in one place, should it still bear the administrative punishment decision made by an administrative subject with the same function but different subject qualifications in another place for the same reason and basis? For example, the driver Wang transported watermelons from A province to C province, and was found overloaded and fined by the highway management department of A province on the way. When passing through B province, it was fined by the local road administration department for overloading. Finally, he entered the territory of C province and was punished for the same reason by the road administration department of C province for the third time. Indeed, China's constitution and administrative organization law are authorized.
Qualifications of administrative departments and administrative subjects and corresponding punishment permission rights. They are all administrative subjects for administrative regulation and management. Its subject qualification is legal. Defending on the grounds that "a subject has not been punished twice, and his subject does not represent his own subject" seems to have its logical and legal legitimacy and rationality. This phenomenon is widespread in actual administrative punishment. The principle of "no more punishment for one thing" seems to be powerless.