Effective control of administrative procedure law on rational operation of administrative power

The formation and development of the realistic political system in many countries is always based on specific historical conditions, which has a great relationship with the political and cultural traditions of various countries, the ruling needs of the ruling authorities and the concrete implementation of the multi-party system.

According to incomplete statistics, at present, there are more than 50 countries in the world that explicitly stipulate in their constitutions the political system of separation of executive, legislative and judicial powers, including both western developed countries and many developing countries. As a political theory, it emphasizes the restriction and balance of administrative, legislative and judicial powers, but it has never really been realized in political practice. First of all, in different countries, the specific forms, structures and weights of administration, legislation and judicature are different. The political system of the United States can be called the specimen of administration, legislation and justice, but at present, the executive power headed by the president has become the core of state power, surpassing or even partially replacing the other two powers. For example, more than 85% of congressional legislation in the United States is initiated and drafted by the administrative department, forming the phenomenon of "authorized legislation". Congress is more about supervising the actions of the president and the government, and the checks and balances of the courts are only reflected in specific lawsuits.

In the British political system, Parliament has the highest status, and it is the highest legislature and judiciary. The government is composed of political parties with a majority of seats in parliament, and the leader of the ruling party is the Prime Minister. In this sense, the executive, legislative and judicial departments in Britain not only come from parliament, but also can be regarded as "separation of the two powers" in essence, and the executive power and legislative power are integrated.

In France, the separation of executive, legislative and judicial powers also has completely different connotations. Since ordinary courts belong to judicial organs and administrative courts are incorporated into the administrative system, judicial functions and administrative functions are completely separated. In fact, judicial independence in France means that ordinary courts or judges cannot interfere in legislative and administrative affairs, which has nothing to do with the power balance pursued by the separation of executive, legislative and judicial powers.

After World War II, although Japan has established a political system of separation of executive, legislative and judicial powers, there are also cases where the executive power is too large and the legislative and judicial powers are relatively weak. It can be said that in countries where the executive, legislative and judicial powers are separated, there is basically an imbalance among the three powers, which is difficult to effectively restrict.

Secondly, the political system is the product of specific historical conditions and development stages. The abuse of power by European feudal rulers has aroused the high vigilance of European and American bourgeoisie, which is its original intention of seeking to establish a system of separation of powers and checks and balances to prevent abuse and monopoly of power.

The development and evolution of the political system of separation of executive, legislative and judicial powers also reflects the changes and transformation of the country's economy and society. For a long time before the end of the United States 19, the feature of "legislation first" in the political system was very prominent. However, at the end of 65438+2009 and the beginning of the 20th century, American society gradually changed from a traditional agricultural society to a modern industrial society, and liberal capitalism also changed to a monopoly capitalism stage. National economic problems, class contradictions and social opposition are increasing day by day, but the inefficient and fragmented Congress is embarrassed. Under this historical background, the executive power headed by the president rose to the power center, forming a new power pattern.

Third, the formation and development of the political system of separation of executive, legislative and judicial powers are influenced by various specific factors. First of all, the traditional political and cultural factors can not be ignored. European constitutionalism has a long history. Most early American citizens were European immigrants. Many European and American countries have a political and cultural tradition of respecting the law, advocating democracy, acknowledging the limited power and advocating separation of powers, which is the social, political and cultural basis for the formation of the political system of separation of powers.

The second is to reflect the political needs of interest groups. The process of the rise of American presidential power is also the process of the close alliance between monopoly capital and administrative power. Since the beginning of the 20th century, the monopoly bourgeoisie has been growing, looking for political spokesmen to master the American market and expand to the world. They successfully manipulated the bipartisan elections to ensure that the president and the government safeguarded their interests.

Third, it depends on the concrete implementation of the multi-party system. Take Japan as an example. The liberal democratic party has been in power for a long time and is "one-party dominance." It not only controls the executive power, but also controls the parliament, especially the House of Representatives. After half a century in power, it was not until this year that it was replaced by the Democratic Party.

Longer than supervision, shorter than efficiency

On the one hand, the separation of powers system prevents the abuse of power to a certain extent and is conducive to the supervision of power. Because of the division of state power, any kind of power is limited. The separation of the three powers highlights the difference between legislative, administrative and judicial functions, realizes the separation of institutions and the demarcation of functions, thus ensuring the mutual restriction in the process of power operation, thus "restricting power with power" Therefore, when President Nixon tried to use the state administrative agencies to serve his personal interests, after the Watergate incident, Congress could immediately start impeachment proceedings to force Nixon to resign.

At the same time, the principle of "controlling power by power" also provides a feasible mechanism for realizing the supervision of power. At present, most western countries have established and formed a systematic power supervision mechanism with parliamentary supervision and judicial supervision as external supervision and internal administrative supervision and personnel supervision as self-discipline supervision, which has well prevented state power from being monopolized by a certain interest group.

On the other hand, there are obvious defects in the system design of separation of powers, such as excessive decentralization and insufficient coordination, low efficiency, wrangling and shirking responsibility. First of all, the separation of powers has not fundamentally solved the basic contradiction that bourgeois state power is above society, and it is difficult to form an institutionalized mechanism for people and society to supervise and restrict state power.

Secondly, the most criticized part of the separation of powers system is that it emphasizes the division and separation of powers while ignoring coordination and cooperation, which often leads to mutual restraint between powers and low administrative efficiency. Especially when combined with the multi-party system, the political system and its principle of separation of powers even become the tools of party struggle. In the United States, where the two major political parties take turns to govern, the effect of the restriction of the three powers is often dramatic. During the administration of Democratic President Clinton, the Republican Party controlled the Congress, and the executive power and legislative power belonged to different parties. During this period, the party's political factors were injected into the process of supervision and checks and balances between legislative power and administrative power. The Clinton administration's administrative motions are often blocked by the Congress controlled by the party, and even several times the government closed down because the annual budget could not be passed.

Expansion and revision of administrative power

Since the end of World War II, due to various needs of governing the country, the development of administrative power in western countries has become increasingly stable and concentrated, gradually replacing the dominant position of legislative power in the three powers, leading to the expansion of administrative power and the weakening of the other two powers. Since the mid-20th century, more and more countries in the world have realized the serious consequences of this development trend, and have begun to take various measures to restrict administrative power and limit and narrow its scope of exercise.

Its main ideas include: first, transforming and reducing the administrative functions of the government and restricting administrative power. By transforming and reducing government functions, it not only improves government efficiency, but also avoids corruption caused by excessive expansion of administrative power to some extent. The second is to standardize administrative behavior and control administrative power. The third is to strengthen social autonomy and transform administrative power. Introduce social forces, transform part of the administrative power originally belonging to the government into social power, and let citizens participate in the management and supervision of state affairs.

In the specific adjustment and revision, the following practices are generally adopted:

First, through legislation and other legal means, the executive power is revised, supplemented and redefined. For example, after Roosevelt was re-elected for four terms, the US Congress proposed a constitutional amendment, stipulating that the president's term of office should not exceed two terms, in order to prevent personal monopoly that may be caused by unlimited re-election. Denmark passed the constitutional amendment in 1953, introducing parliamentary supervision system to supervise the army and administrative system, aiming at correcting the erosion of legislative power by administrative power and preventing corruption caused by the expansion of administrative power.

The second is to prevent the excessive use of administrative power through strict procedures. Since the 1940s, people have paid more and more attention to administrative procedure as a means to restrict administrative power. The United States has enacted a federal administrative procedure law, and Germany, Spain, Portugal, Switzerland, Austria, the Netherlands, Japan and South Korea have also enacted administrative procedure laws. The rise of administrative procedure has led to the change of power control mechanism, and the constraint on administrative power has changed from the traditional judicial review after the event to the control of administrative behavior before and during the event.

The third is to strengthen social supervision over administrative power. On the one hand, through legislation, part of administrative power is delegated to social organizations between the state and citizens, so that administrative power is transferred to society. On the other hand, citizens are allowed to participate in the administration of the government through various channels and forms such as symposiums, argumentation meetings, hearings, submission of written materials and opinions, or participate in administrative legislation and administrative decisions through written or oral debates; Participate in the implementation of specific administrative acts through statements, defenses, administrative consultations, hearings, etc.

The following issues need to be recognized:

First of all, we can't simply assume that the political system of western countries is the separation of powers. First, the political systems of western countries are also diversified. For example, Switzerland does not implement the separation of powers, but adopts the Committee system.

Second, the separation of powers is relative, and there is no absolute separation of powers system. Even in the United States, where decentralization is the most typical, real decentralization has never been realized. The mutual penetration among the three major forces is very common. For example, the president of the United States has the power to veto legislation and initiate legislation, and can partially exercise the legislative power of parliament by entrusting legislation; The Supreme Court can participate in the policy-making of administrative organs through the power of constitutional interpretation and unconstitutional review. Congress can use the appropriation right to participate in administrative decision-making extensively.

Third, the separation of powers system is not static in western countries. As mentioned earlier, administrative power tends to expand.

Secondly, the separation of powers cannot completely and effectively restrict power, let alone the only way to restrict power. The United States has experienced different stages of development from the supremacy of legislation to the expansion of administrative power. So far, the United States has not solved the problem of lack of effective restriction on administrative power. During George W. Bush's administration, he used fabricated evidence to deceive Congress and citizens and launched the Iraq war. Authorized intelligence agencies can eavesdrop on the telephone and telex of any suspect without the permission of the court, which makes the restriction and supervision of legislative and judicial power on administrative power ineffective.

The checks and balances should not be limited to the checks and balances of three powers, but can be two, four and five powers. The core is to ensure that power is restricted and balanced. According to the Portuguese Constitution, the president, parliament, government and courts are the organs of state power.

At the same time, it can not only form checks and balances within the political system, but also rely on forces outside the system. For example, social constraints in some western countries come from outside the political system and do not belong to any of the three powers, so checks and balances exist outside the separation of the three powers.

At present, checks and balances exist in some countries in the form of separation of powers, which is the result of social change and the evolution of political power struggle. It has certain historical inevitability and will continue to evolve with the development of the situation. This determines that decentralization will not be the ultimate paradigm of checks and balances, let alone equal checks and balances.

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