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Law on Administrative Licenses & change of concept: Commentary
2004/07/05

 

The Law on Administrative Licenses came into effect as of July 1. A correct cognition and understanding of its various provisions and concepts is the prerequisite for a proper implementation of this law. Meanwhile, it is also highly necessary to establish or intensify some concepts in compliance with the new law.

According to some previous habitual practices, the various departments of state organs, while exercising their power, could engage in self-authorization, self-formulation of rules and self-implementation. This concept or practice of self-authorization will be discarded after the new Law is put into practice. According to the stipulations of this new Law: Administrative licenses can be set up only when authorization is granted through law and regulations, rules formulated by a department itself cannot be taken as the basis. That is to say, self-authorization and self-participation in law enforcement are not allowed.

Another important concept is the transformation from power orientation to rule orientation. In China, because the conceptually stressed power orientation of one's official post as well as of the management method, rules are prone to be violated, as a result, problems that originally can be resolved through rules have to be settled only through written instructions from the higher authorities. The Law on Administrative Licenses, through the restraint on power, will promote the gradual establishment of a concept of acting upon rules and attain the aim of improving efficiency and reducing administrative cost.

The Law on Administrative Licenses contains a dozen or so provisions that involve people's participation, this also is a new flashpoint. For a long time, administrative licenses have been the business of an administrative institution. How the populace should participate indeed involves a process of conceptual transformation. Perhaps there are still people who hold different understandings of the necessity of people's participation. We need to enhance our understanding through study and practice and truly ensure the right of people's participation.

Sunshine is a best antiseptic. Through studying and executing the Law on Administrative Licenses, we should establish such a concept: For the government, openness is principle, keeping secret is exception; for the ordinary people, keeping secret is principle, openness is exception. The right of personal privacy should be protected according to law, the work of a government department should be open, just and fair. By the method of compensating pedicab drivers, a city has successfully solved the problem of banning the use of pedicab as a means of transportation in the city. This practice is identical with the need of establishing creditability as set in the Law on Administrative Licenses. Government policies cannot be constantly changed, when a policy must be altered, the government needs to pay a necessary price and reduce the losses of the litigant through making it up or compensation.

Lowering administrative cost is one of the important objectives of the reform of administrative management. Compensation and oversight, including the setup of organization all need costs, therefore it is necessary to establish such a concept: Setting up licenses is a choice made against one's will, when problems can be solved by society, market and the general public, licenses should not be set up hastily. Some people once engaged in the study of the management method concerning responsibility for improvement of the environment in front of one's door, thinking that the cost spent on supervision was too high and the result is not satisfactory. If the method of bearing responsibility of compensating for the loss for breaking stipulations is adopted, it will enable one to consciously do a good job in improving the environment in front of one's door and will thus ensure implementation of this policy. Because anyone after being harmed has the right to claim, this virtually constitutes an unpaid supervisory mechanism. No one wants to have such trouble and the management objective is thus achieved at a relatively low cost.

The Law on Administrative Licenses stipulates that anyone who issues the license shall exercise supervision and hold oneself responsible. What is particularly noteworthy here is the need to establish a concept of responsibility. Power shall be linked up with responsibility and unhook connection with interest, thus solving the problem concerning those who have preference for power but do not want to assume responsibility. Once foreign businessmen expressed their views on China's market management, thinking that it was hard to enter the market, but once they entered the market, they felt rather free. This reflects from one aspect the problem existing in certain government departments in regard to the unity between power and responsibility.

The Law on Administrative Licenses is a law rich in content. Proper implementation of this law requires that the government department intensify some concepts, such as convenience-for-people concept and procedural concept, etc. Intensification of these concepts will help promote government departments to truly create a good management environment, give expressions to the basic principles of fairness and high efficiency, realize the transformation of functions, properly manage what should be managed, decontrol things that should not be controlled. It is held that implementation of this law is a profound reform undertaken by government departments. Government departments at all levels, particularly leading cadres of various levels, should have a profound understanding of the important significance of the enforcement of the Law on Administrative Licenses and properly implement this major reform measures.

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