"The nature and function of legal supervision is the most basic control of it, a process control method, to prevent, control and correction of deviation or error; and to control the power operation by monitoring the operation process of the law, prevention, control and treatment of expansion and abuse of power." As one of the reflected power operation, formulation, implementation of normative documents, also must establish a set of effective supervision mechanism to ensure that the administrative power in the established framework of exercise, prevent the abuse of power and deviance. In this paper, the normative documents three supervision (supervision authority supervision, judicial supervision, administrative supervision) as the research perspective, the status of normative documents supervision work is elaborated from the legal provisions and the actual results, and the normative documents of administrative organs supervision as an example, further analyses the normative the documentation that comes with the realistic problems existing in the audit in the record review and administrative reconsideration and causes.

 

A, normative documents and its supervision system

 

(a) definition of the concept of normative documents

 

The current concept of normative documents defined, in theory and legislation practice, all did not form the relative unification of understanding, which for promoting the normative documents of administrative supervision mechanism, strengthen the normative documents legal supervision is obviously disadvantageous. In order to facilitate research, this article called "normative documents" refers to the administrative main body (authorized administrative organs at all levels and the laws and regulations of the organization) for the implementation of laws, rules and regulations, in accordance with the statutory authority and procedures, in addition to administrative regulations, rules and local government regulations, adjust the relationship between the administrative subject and administrative human rights and obligations, general administrative norms can be applied repeatedly and have universal binding force in the formulation of administrative jurisdiction within a certain period of time.

 

(two) the current supervision system of normative documents

 

Our current supervision of the normative documents has been formed, the judiciary supervision authority supervision, administrative supervision and other three supervision mechanism, in which the administrative level surveillance, and the effect is relatively obvious.

 

1, the supervision authority. In our country, supervision of the normative documents of the authority include pre supervision and afterwards supervision.

 

"As a normative document a copycat authority legislation, law or other laws and regulations without authorization, develop, modify and abolished also does not need to be handled in accordance with the" provisions of the legislation law "." However, this does not mean that the range of normative documents can break through the constitution allowed. "Regulations" stipulates that the thirty-sixth program "local people's governments above shall not have power to formulate formulate, publish the universally binding decisions, orders to make the rules, according to the regulations of program execution", visible, normative documents should be through the project, drafting, review, decision, announced and explained, for the record program, enacted to scrutiny from the authority of the. In fact, in the normative documents formulated before, still to consider the law, regulations and the normative documents are consistent; whether the occurrence of normative documents in the upper law deviates from the process of law embodied in the phenomenon; whether there is beyond the scope of normative documents formulated authorities and so on, all these constitute the ex ante supervision of the normative documents.

 

Supervision of normative documents mainly refers to the record review authority on the normative documents formulated after and cancellation system. "The constitution" stipulates that the sixty-seventh "the Standing Committee of the National People's Congress exercises the following functions:...... (seven) revocation formulated by the State Council with the constitution, in contravention of the laws of administrative regulations, decisions and orders......" "Organization law" forty-fourth stipulates that "the Standing Committee of a local people's Congress at or above the county level shall exercise the following powers:...... (eight) annul inappropriate decisions and orders of the people's government at the corresponding level......" This is authorized by law to constitutional and legal empowerment normative documents on the authority supervision. "Supervision law" on the normative documents filing and examination by special regulations, the authority for the normative documents filing and examination system, but also scattered in some local regulations.

 

2, the judiciary supervision. Judicial supervision is refers to the people's court through judicial supervision on administrative organs of the specific administrative conduct supervision, but also a variety of normative documents on the basis of the specific administrative act is legal to identify, evaluate and judge. In 2000 the "interpretation" of the Supreme People's Court on some problems in the implementation of "the people's Republic of China Administrative Procedure Law > has a breakthrough, the judicial interpretation of the provisions of" people's courts in the trial of administrative cases, can reference the lawful and effective rules and other normative documents in the document." In 2004 the "Supreme People's Court on the application of legal norms "people's court review of that specific application interpretation the basis of concrete administrative act and other normative documents legal, effective and reasonable, appropriate, the legitimacy that the sued specific administrative acts should acknowledge its validity; the people's court may on the reasons for the specific application interpretation and other normative documents are legitimate, effective, reasonable or appropriate review." Therefore, at present the supervision over administrative normative documents still remain in the indirect judicial supervision level. The people's court may only be in the reason of normative documents are legitimate, effective, reasonable or appropriate to review, the superior administrative organ illegal normative documents can be obtained through the judicial proposal form normative documents formulated organ for administrative illegal normative documents shall be changed or revoked.

 

3, administrative level surveillance. Administrative level surveillance, normative documents in practice, mainly for the record review, administrative reconsideration of incidental review two system.

 

(1) review of the record system. "Normative documents filing system refers to the normative documents issued to the higher administrative authority submitted for the record, accept the authority at the next higher level review, found a way to correct the problem timely afterwards supervision system." According to the Legal Affairs Office of the State Council statistics, "so far, the country's 31 provinces, autonomous regions, municipalities directly under the central government and the 25 major city through the development of rules in the form of government legislation to establish a standardized record review system documents, province, city, county, forming a township (town) four levels of government 'institutional framework, three level for record', the normative documents, local governments at and above the county level to the government and its subordinate working departments and supervise. According to statistics, by the end of 2006, the country has 334 municipal government and 2373 county government established normative documents filing system, accounting for 94% and 87%."

 

(2) additional examination system in administrative reconsideration. Normative documents on the review of administrative reconsideration in Administrative Reconsideration Law "provisions" of the. The seventh paragraph first "citizens, legal persons or other organizations think that the following provisions on the basis of which the specific administrative acts of the executive authorities is not legitimate, on the specific administrative act of the administrative reconsideration, may also apply for examination of these Provisions to the administrative reconsideration organ: (a) the provisions of the State Council departments; (two) local people's governments at various levels shall at or above the county level and their departments; (three) the provisions of the people's Government of a township, town." The provisions of article twenty-seventh "the administrative reconsideration organ on the review of the specific administrative act made, that the basis is not legitimate, the authorities have the right to handle, shall deal with it according to law within thirty days; no right to handle, shall within seven days according to the legal procedure to have the right to deal with national authorities in accordance with the law. During the treatment, to suspend the examination of the specific administrative act." Visible, "Administrative Reconsideration Law" establishes examination system for "provision", is a kind of interested parties of the right to apply for administrative review system based. As long as the applicant of the decision on subjective thought basis of concrete administrative act "provisions" illegal, can be asked to review the application. The normative documents of the right to apply for review gives the system, will be conducive to the stakeholders in the normative documents formulated enjoys the rights in the process of implementation, and then to protect the administrative relative person's legitimate rights and interests to a certain extent.

 

China's current normative documents play a supervisory role of the supervision mechanism of normative documents in a certain extent, but the overall form is still heavy on the actual effect. Supervision why normative documents show long supervision and oversight of the situation? The author tries to normative documents of administrative supervision as an example, expounds the.

 

Two, normative document administration level surveillance problem

 

administrative organs of the dual formulation, review as normative documents oversight of the main practical problems and further file administrative normative research, formation mechanism, will certainly contribute to the appropriate mechanism to solve the current problems existing in the supervision of normative documents, further strictly normative documents management and supervision.

 

(a) the main problems of normative documents filing review

 

The author thinks, the administrative organ for the main problems of administrative review of normative documents:

 

1, record review limited effect. There is a higher government cannot correct has been issued to lower levels of government regulations; on the other hand, illegal or the presence of normative documents unreasonable once implemented, may have a material impact on some of the citizens, legal persons and other organizations of their rights and obligations, although the way to recover or compensate relief through the law, but the administrative authorities have questioned the credibility, may even lead to mass incidents.

 

2, record review agency staffing and the task of. Taking Xiangan District of Xiamen city as an example, in 2008 January to 2010 October, the District of the Xiamen Municipal People's Government shall submit the filing and examination of normative documents for 61 times, the pre review departments and Zhen Jie normative documents for 49 times, and the legal mechanism of the district government has only 1 full-time staff relative. But the situation in the country and so on, also exist to varying degrees, so that the "State Council on strengthening the city administration decision" clearly put forward to "perfect the legal mechanism of county government, the institutional setup, staffing and work well."

 

3, the normative documents of Party and government jointly issued outside the record review system. The party and government jointly issued a document, is the traditional practices inherited from the founding of the early, in the specific historical period, to strengthen the leadership of the party, to improve the efficiency of decision-making has played a positive role. In the implementation of the rule of law today, the drawback of this model is outstanding day by day. The party and government jointly issued a document, the leading mode of the party administration, reduce the core status of the party commands the overall situation; if there is a significant error in the implementation, will inevitably affect the party's prestige. In actual work, there are also some local government jointly issued a document, or is in conflict with the laws, regulations, or violation of the citizens, legal persons and other organizations of the legitimate rights and interests. The most typical example is the 2003 Hunan Province, Jiahe county Party committee, county government jointly issued a "four packs two stop" Ka office word (2003) No. 136 document. The document states that public officials have the duty to cooperate county Party committee, county government center, killing 11 leading cadres and the public servants for promoting land acquisition demolition work ineffective demoted or removed from the post, causing very bad influence in the county cadres and the masses in the. And with the norms of legal characteristics and so on file and a joint document, but outside the record review mechanism.

 

(two) the main problem of indirect incidental administrative reconsideration review existing

 

"Review of the administrative reconsideration law" on the normative documents only stay in the indirect examination, the actual social effect is not obvious. "Administrative review law" the implementation of 11 years, the applicant apply for administrative reconsideration with the review of specific administrative act on the basis of normative documents of the administrative reconsideration case is rare. Visible, should the system did not really play a role. The author thinks, the main problems are as follows:

 

1, do not have the right to review alone. "Administrative review law" does not give the administrative relative person alone the right to review of normative documents, only when the administrative relative person in by a specific administrative act of infringement, can with the normative documents on the basis of review of the specific administrative act of the application, it becomes a hindrance to protect the administrative relative person's legitimate rights and interests.

 

2, to exclude the principle of reasonableness. The administrative reconsideration of indirect normative documents take the legitimacy standard of review, the rationality of the normative documents out of the reconsideration. This reduces the administrative censorship, restrain the error correcting function of the administrative reconsideration of administrative action, this is clearly not consistent with the spirit of the law and the principle of legislation.

 

3, review the authority and procedures for separation. "Administrative review law" provisions of article twenty-sixth of the "Regulations" to hear the most basic program, "which in accordance with the transfer procedures, review authority and Cheng Xuxiang separation reconsideration transfer after treatment of authority and procedure of nature and the reconsideration organ," the design of such a system, will not be conducive to the realization of the value objective review system.

 

4, with the judicial relief program out of. The reconsideration organ and other authorized authorities after review, to maintain the normative documents concerning legal ruling is still not satisfied, lack of further judicial remedies. "The provisions of this reconsideration and litigation scope do not join, will eventually lead to normative documents review system of administrative reconsideration system in formality."

 

Three, analysis of the causes of Administrative Supervision Specification document problems

 

The author combined with their own actual work, believes that a series of problems, the normative documents of administrative supervision are summed up, at least four reasons:

 

(a) the rule of law consciousness is not strong

 

The leading part of the administrative organs work record review of normative documents of the inadequate attention, few departments one-sided emphasis on the Department of power and interests, in the normative documents formulated the lack of the consciousness of rule of law and democratic consciousness in the process of. With the administrative affairs of the kinds, frequency change speeding up, the administrative discretion objectively requests the administrative organ has more and more. Normative documents formulated behavior into administrative discipline on its own discretion, is the inevitable product of the expansion of the administrative power in the legislative field. Expansion of administrative power to make normative documents are inconsistent with the rule of law of the influence factors, departments of local interests or the interests of the state supreme, to ignore the law. Excessive administrative licensing, improper administrative punishment, illegal fund-raising quotas and too much government administrative behavior "Hongtouwenjian" form. "To develop normative documents has become a way of government holds the power resources and distribution of vested interest means, further leading to the practice of departmental protectionism, local protectionism phenomenon aggravating." The desire and the possibility of self expansion of the administrative organ powerful, increased the record review of normative documents in the administrative organ accepts the difficulty: record review, some administrative organs by underreporting, omission and circumvention by Party and government jointly issued a document, a part of the normative documents without trial; in the process of administrative reconsideration the reconsideration organ considers, than for departmental interests make modifications to the normative documents; in the process of formulating normative documents, the administrative organ to exercise the power freely, the lack of appropriate procedural constraints. Thus it can be seen, one is the expansion in the legislation in the field of administrative power, the rule of law consciousness is not strong; on the other hand is on the record review of normative documents weak. We can draw the conclusion: the administrative authorities at all levels of leadership and staff awareness of the rule of law is not strong is an important cause of record review system of normative documents difficult to play its due effect.

 

(two) system of poor convergence

 

Although the supervision mode of normative documents perfectly, the rights of the relative person seems to be guaranteed. But because of the "official standard" consciousness ingrained, expanding administrative power and the vicious spiral in the process of operation, resulting in the rights of citizens relative reduction and weak humble, power without responsibility and having no right to relief contrast. Administrative legal relationship is not equal, "for example, in the administrative substantive legal relation, administrative organ and the relative party's rights and obligations are unequal and unbalanced, the administrative organ is dominant, can decide the relative rights and obligations of a party, the latter can only obey," the formation of non legal relationship peer to peer, such non equivalence is decided by the superiority of administrative subject. Administrative power has the initiative, universality, discretion and other characteristics, take the national compelling force as the backing, to national interests, social interests as the basis. And the administrative relative person's right is passive, subject characteristics, therefore, "power is stronger than the rights of non reciprocity of rights of individual citizens and the power that is difficult to match." As Montesquieu said, "from the nature of things, to prevent the abuse of power, must use power to restrict power". Administrative procedure law of the normative documents out of the scope of accepting cases, more is lost in the last line of defense standard, administrative relief system between cohesion and judicial relief of the poor, the rights can not be effectively compete with power.

 

(three) personnel security issues

 

As the actual work, many government legal system organization is not perfect, personnel shortages, legal institutions of county government is only one or two people, some even wear several hats. In 2007 June, Fujian Province, in order to solve the legal institutions of county government personnel shortage, especially by the CPC Fujian Provincial Committee Organization Office issued "on City, county (District) Notice" the legal work of the government organization and staffing, explicit requirements "counties (city, district) government legal work of the machine should be equipped with at least 1 full-time staff, and due to a number of part-time staff." But in reality, the government legal organization in addition to responsible personnel filing and examination of normative documents, but also bear the administrative reconsideration, administrative litigation, petition review, supervision of law enforcement, legal counsel for the government, the administrative decision-making legal review a number of duties, sometimes with any other administrative affairs, it is difficult to do the division level. "Some years of work in the legal institutions of the people feeling quite a lot, they said, one or two people, according to duty, Gu not to come over, don't do it, there is no role and influence." In the staff shortage, energy is limited and the program specification is not strict, the problems it is not difficult to understand the normative documents of administrative supervision.

 

(four) poor responsibility for

 

Although in some places through self-discipline government established a record review system some normative documents, intend to ascend a normative document quality through the filing work, but because the normative documents filing and examination of post supervision, whether or not to the higher administrative authority for the record or to the government legal agencies for the record or the record to the NPC Standing Committee, are not enough to affect the effectiveness of the normative documents, but will not make organs subject to accountability. That is to say, the elements, effective record review is not normative documents formulated at the same time, even illegal normative documents Tingduo is document is revoked or to request correction, the formulation departments themselves don't bear any legal risk or risk and co.. (Ceng Guohui 2011 February

 

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