Chapter IV Historical Development of Administrative Law and Administrative Law

The first part: the historical development of administrative law in China.

I. Initial stage (1949- 1957)

This is the period when China's administrative legal system began to develop and grow, and it is the primary stage of China's socialist administrative law. During this period, the state formulated and promulgated a large number of laws and regulations on administrative organization, which stipulated the organizational structure, powers, working methods and responsibilities of state administrative organs at all levels. At the same time, the state has also formulated and promulgated a large number of administrative regulations, which stipulate the authority and management methods of state organs in economic, political and cultural affairs, as well as in the fields of people, finance and materials. From 1949 to 10 to 1956 to 12, the state promulgated 829 administrative regulations. During this period, the state also established an administrative supervision system and a system of citizens suing state organs and their staff for violating laws and dereliction of duty.

Second, the failure stage of stagnation (1957- 1978)

This is a period of slow development, wandering, stagnation and retrogression of China's administrative legal system. In the decade of "*", the administrative legal system suffered greatly and was devastated.

III. Transformation and Exhibition Stage (1978- 1989)

From the Third Plenary Session of the Eleventh Central Committee in 1978 to the adoption of the Administrative Procedure Law of the People's Republic of China in 1989, it is a new period for the reconstruction and development of China's administrative legal system. During this period, there are five main tasks:

(1) Restore the original legal system and solve the problem that there is no legal basis in the administrative field.

(two) to formulate a new constitution and determine the purpose and development direction of the administrative legal system.

(C) the reform of government institutions and the transformation of government functions

(4) Establish an administrative legislative system and improve the administrative legal system.

(5) Establish administrative and judicial systems to ensure fair administration.

Fourth, the transition stage to the new model (1989-)

The so-called "transformation to a new model" refers to the transformation of administrative law from the original model that mainly adapts to the planned economy to the current model that adapts to the market economy, and from the model that mainly performs management functions in the past to the model that now has both management functions and power control functions. This is mainly reflected in six aspects:

(a) establish the principle of administration according to law in the administrative field.

(two) the formulation of administrative litigation law, the establishment of administrative litigation system

(3) Formulating state compensation law and establishing administrative compensation system.

(4) Formulating the Provisional Regulations on State Civil Servants and establishing a civil servant system.

(5) Formulating the Administrative Supervision Law to improve the administrative legal supervision.

(six) improve the legal system of administrative procedures, strengthen the supervision and restriction of the exercise of administrative power.

Section II Historical Development of Administrative Law in China

I. "Prehistoric stage" (1949- 1978)

During the 30 years after the founding of New China, administrative law has been in a blank state in the subject classification catalogue of our country, and the subject of administrative law has not been established.

Second, the creative stage (1978- 1985)

Summary of Administrative Law edited by Wang Mincan was published in 1983, which is the first administrative law textbook in China.

By the mid-1980s, the teaching and scientific research of administrative law was in full swing in China, and administrative law was formally established as an independent legal department.

Third, the stage of all-round development (1985- 1989)

After 1985, administrative law developed rapidly throughout the country. As far as administrative law works are concerned, there are dozens of kinds, including textbooks and monographs. There are both works on China's administrative law and works on foreign administrative law; There are not only Ying Jie's works and translations of Politics and Law, but also a large number of papers and translations.

Fourth, the stage of in-depth development and gradual formation of academic schools (1989-)

After 1989, China's administrative law developed in depth, mainly in quality and depth. This is mainly reflected in: a large number of special research results emerge; The study of administrative procedure law occupies a particularly important position in administrative law; The study of administrative law pays attention to integrating theory with practice; Several academic schools have emerged.

Section 3 Main schools of administrative law in various countries

First, the formation and historical background of the main schools of administrative law

The most important and basic adjustment object of administrative law is the relationship between administrative subject and administrative counterpart. Scholars of administrative law have different opinions, viewpoints and theories on how to adjust this relationship, how to distribute the rights and obligations of both parties, and thus what kind of legal order is formed, and various schools of administrative law have gradually formed. There are three influential schools, namely, power control school, management school and balance school.

Power control theory is mainly popular in Britain and America.

Management theory is mainly popular in the planned economy era of the former Soviet Union, Eastern European countries and China.

The theory of balance was founded in the early 1990s and put forward by Professor Luo. Since then, the theory of balance has been continuously developed and perfected in China, and it has occupied a dominant position in the field of administrative law since the middle and late 1990s. However, there are still quite a few scholars who disagree with the equilibrium theory, and some scholars still advocate the new power cybernetics or the new management theory.

Second, the basic views of the main schools of administrative law

(A) the basic ideas of power control theory

1, the basic purpose of administrative law is to protect private rights and freedoms.

2. The basic content of administrative law is to control and restrict government power.

3. The theory of power control especially emphasizes the principle of strict administration according to law and advocates strict restrictions on the discretion of administrative organs.

4. There are two main means of administrative law: judicial review and administrative procedure.

(B) the basic idea of management theory

1, the main purpose of administrative law is to protect the interests of the state and society.

2. The basic content of administrative law is to adjust the state management relations and stipulate the principles and systems of state management.

3. In management theory, management principles are usually considered as legal principles, and the most important management principles are adhering to the leadership of * * * *, socialism, democratic centralism and socialist planned economy.

4. The administrative legal relationship is mainly the command-obedience relationship, so the means of administrative law are mainly mandatory and compulsory.

(C) the basic point of view of the equilibrium theory

1, administrative law should not only ensure the effective implementation of administrative law, but also prevent the abuse or illegal exercise of civil rights.

2. The basic contents of administrative law are administrative relations and supervision of administrative relations.

3. Administration according to law is an important basic principle of administrative law, but the connotation of administration according to law should be reinterpreted.

4. Balance theory advocates the comprehensive use of various means of administrative law, that is, the use of orders and coercive means in necessary occasions, and at the same time, the use of administrative orders, administrative sanctions and administrative coercive means should be avoided in most occasions to dilute the color of power.

Questions to consider in this chapter:

1. Briefly describe the basic viewpoints of power control theory.

2. Briefly describe the basic viewpoints of management theory.

3. Briefly describe the basic viewpoints of equilibrium theory.

4. On the social background of the development of administrative law in China.