Right protection and right restriction

Author: Zhan Zhongle
Publisher:
Publish Date: 2003-12-01
Features: This book is divided into six parts. Part "Codification of Administrative Law: Necessity and Possibility." The articles collected here primarily focus on new research topics in administrative law studies in the new century. Among them, I believe the most valuable is the exploration of the future codification of administrative law. Although the codification of administrative law will be a challenging and winding journey, I always believe it is not impossible to achieve. As administrative law norms in various important fields become increasingly complete, it is possible to adopt new legislative techniques, like the Netherlands, to draft a unified General Administrative Law and even a future Administrative Law Code. However, such a scenario will still require more time.
The second part, "Administrative Legislation: Democratization, Scientificization, and Rule of Law," collects six articles. These include general discussions on the expansion of administrative legislation and legal supervision, as well as analyses of specific issues in administrative legislation, such as reforms in the degree system, the labor re-education system, government procurement legislation, and the improvement of road traffic accident liability determination systems. The central focus is on how to further democratize, scientificize, and rule-of-law-oriented administrative legislation.
Democratization emphasizes the legislative process of administrative law, highlighting how to maximize citizen participation in legislation and ensure that administrative legislation reflects public will and demands to the greatest extent possible. Scientificization focuses on the scientific nature of legislative content, ensuring it aligns with objective laws and realities. Expert consultation and participation mechanisms are used to guarantee the scientificity of administrative legislation. Rule of law emphasizes that all administrative legislative activities should adhere to the principles of the rule of law and reflect its spirit. Administrative legislation should be an important part of the rule of law.
The third part, "Market Economy and Rule-of-Law Administration," collects five articles, including one that has never been published before. These articles address how to view the division of government functions under a market economy and how to reform existing government management models and methods. Especially after China joined the WTO, the government has faced challenges and tests in many areas. The article on the reform of the administrative approval system is an analysis and research conducted in response to this situation.
The fourth part, "Basic National Policies: Reproductive Rights, Freedom, and Restrictions," is particularly sensitive, serious, and important for Chinese scholars. Its sensitivity stems from the fact that when we investigate the current situation and existing problems in the field of family planning, many government officials are reluctant to speak the truth. In many people's eyes, this issue is easily linked to so-called human rights issues, making it highly sensitive. Its seriousness lies in the fact that it indeed affects the rights and freedoms of every family and even every individual, not only impacting our current generation but also potentially affecting our descendants. On a small scale, it involves every specific family, while on a large scale, it concerns the population size, population development, and sustainable economic development of the nation. Therefore, when discussing it, we do not feel light at all but rather find it extremely heavy and serious. Its importance lies in the fact that it involves the limitation of individual rights and freedoms and the legal protection of fundamental human rights, which must not be taken lightly.
The three articles in this part are published in this book for the first time. Based on the author's experience and insights from participating in the drafting of the National Population and Family Planning Law, this book analyzes and studies this common yet rarely explored field in legal academia. In the articles "From Basic National Policy to Basic Law" and "A Brief Discussion on China's Population and Family Planning Law," the author focuses on explaining the legislative background, process, and characteristics of the law. In "On China's Social Support Fee System," the author elaborates on the historical emergence and evolution of this special system and explores the main problems it faces after its establishment.
The fifth part, "Procedural Rule of Law: Procedural Justice and Administrative Procedure," collects four articles. One analyzes the price hearing system based on the January 2002 railway passenger train price adjustment hearing. Two discuss the legislative background, process, and legal norms of Japan's administrative procedure law, along with their characteristics. Another is a summary of an international academic seminar on comparative studies of administrative procedure law. The purpose of including these articles is to learn from the legislative experiences of other countries and hope for the early introduction of China's administrative procedure law—the so-called "other mountain's stone can polish the jade."
The sixth part, "Judicial Review: Theory and Case Studies of Administrative Litigation," collects 11 articles, all of which are related to administrative litigation or judicial review. Although China's administrative litigation system has been established for a relatively short time, and judges' experience in administrative adjudication is still limited, we are aware that the improvement of the system requires a long-term development process, and judges' experiences need to be continuously summarized and accumulated. However, it cannot be denied that in recent years, administrative adjudication has achieved remarkable results that have attracted worldwide attention. In many fields, administrative judges have fully demonstrated their wisdom and made judgments with significant impacts. These are definitely commendable.
The articles collected in the sixth part include discussions on general theoretical issues of administrative litigation as well as analyses of specific cases. I have chosen several influential cases in the field of administrative adjudication, such as "Hainan Kaili v. China Securities Regulatory Commission," "HSBC Company v. Harbin Municipal Planning Bureau," "Qiao Zhanxiang v. Ministry of Railways," and "Liu Qiuhai v. Beihai Municipal Traffic Police Detachment" for analysis. These cases reflect certain characteristics of their time. In practice, there are many such judgments, but they have not been well explored and analyzed. They reflect the great efforts made by judges under the current system in a certain period. Most of these judgments fully reflect and embody their wisdom, but some also reveal problems caused by systemic deficiencies.
The author pays attention to these judgments and conducts case studies. My main purpose in analyzing these cases and judgments is to discover the positive impact of judges' wise decisions under the current system on society, to uncover the passionate and fervent hearts behind these rational judgments, to recognize the important role these judgments play in protecting the legitimate rights and interests of parties, and to acknowledge their significant contributions to improving relevant systems. Through the analysis of these cases and judgments, the focus is also on exploring how to improve the current administrative litigation system.