Administrative Law Week 6 Definitions PDF

# Japan - Some History ## Premodern Bureaucracy The feudal period, which involved warring lords and a samurai class of administrative officials. Japan had maintained a cohesive administrative class called samurai, a word that came from the *saburau* (“to serve”) aristocrats. Samurai generally me...

# Japan - Some History ## Premodern Bureaucracy The feudal period, which involved warring lords and a samurai class of administrative officials. Japan had maintained a cohesive administrative class called samurai, a word that came from the *saburau* (“to serve”) aristocrats. Samurai generally means military officials, and they had come to constitute a class in the Edo period (1603–1863). This era, understood as exceptionally peaceful and relatively prosperous, was ruled by the Tokugawa shogun government in Edo (now Tokyo). The position of shogun ("general" in English) was at the very top of the samurai. But government in this period was not a unitary, centralized system. The Tokugawa government was a feudal system in which each one of the local lords controlled his own *han* (sometimes translated as “clan,” but more appropriately a “domain” headed by lords). A *han* enjoyed prerogatives like exercising its own currency, tax, police, and laws. Local lords were put under strict control by the shogun (e.g., half of the year they had to live in Edo), and if local rule was not working, the lord's family might be terminated or relocated to less affluent areas. But as long as they remained loyal to the shogun and ruled well, the positions of the lords were secure. This was a very decentralized system. ## Prewar Period Began with the Meiji Restoration in 1868 and lasted until the end of World War II. In 1868, for the purpose of integrating the past feudal system and establishing a more centralized system, the first centralized government (called *dajokan*) was established under the emperor. The top jobs were occupied mainly by former members of the four *han*, creating "cliques" in government. In 1885, the cabinet system was established and the first prime minister, Hirobumi Ito, proclaimed soon after taking the position that the basic rule of recruitment should be based upon competitive examination. In 1886, Tokyo Imperial University (now the University of Tokyo) was established. The most important function for this university was to produce young talent willing to enter the central bureaucracy. In 1889, the Meiji government established a nationwide local administrative system, thereby centralizing control over lower levels of government. The Meiji local system had two tiers: prefectures and city/town/village or municipalities. Bureaucracy in Japan was modeled after Germany. ## Postwar Japan The Constitution of November 3, 1946 The principle of separation of powers guaranteed in the Constitution of Japan became effective on May 3, 1947. The Diet is granted legislative power, the Cabinet is vested with executive power, and the Supreme Court and lower courts are given judicial power. * Article 41. The Diet shall be the highest organ of state power, and shall be the sole law-making organ of the State. * Article 65. Executive power shall be vested in the Cabinet. * Article 66. The Cabinet shall consist of the Prime Minister, who shall be its head, and other Ministers of State, as provided for by law. * The Prime Minister and other Ministers of State must be civilians. * The Cabinet, in the exercise of executive power, shall be collectively responsible to the Diet. * Article 76. The whole judicial power is vested in a Supreme Court and in such inferior courts as are established by law. * No extraordinary tribunal shall be established, nor shall any organ or agency of the Executive be given final judicial power. * All judges shall be independent in the exercise of their conscience and shall be bound only by this Constitution and the law. ## Local Self-Government in the Constitution * Article 92. Regulations concerning organization and operations of local public entities shall be fixed by law in accordance with the principle of local autonomy. * Article 93. The local public entities shall establish assemblies as their deliberative organs, in accordance with law. Japan has a parliament-cabinet system of government. The local government consists of prefectures and the municipalities that make up the prefectures. # 2. Japan - Administrative Values ## Legality Administration acts only after the law allows them to. ## Equilibrium Administration should consider every possible factor, opinion, and interest. ## Seniority Determined by which year one entered a ministry. # 3. Japan - Administrative Adjudication Administrative procedure is regulated in the Administrative Procedure Act of 1993. Judicial review over administrative actions is regulated by the Administrative Case Litigation Act of 1962. There are two modes of judicial review over administrative actions: 1. review by the method of replacing an administrative judgment with its own 2. review of going beyond the bounds of or abusing discretionary powers. # 4. China - Some History ## I. Royal Administration Prior 1912 Royal administration experienced a long-term, gradual evolution, leading to its very delicate and complex structures and institutions. The ancient Chinese history showed a roughly 200-year cycle of new dynasty, prosperity, decline, peasant rebellion, and another new dynasty. Features of China's ancient administration: 1. It developed a highly centralized structure of power. 2. A formal examination system was adopted to recruit talented officials. 3. Morality was recognized as the base of good governance. 4. Advanced administrative institutions were developed and covered by laws and regulations, e.g. revenue collection, personnel management, administrative inspection and anticorruption, hierarchical control. ## II. State Administration (1912-1978) * **1912-1949. Period** of battles, wars and disintegration, e.g. the two civil warsbetween the Kuomintang a nd the Chinese Communist Party (CCP), * **1949-1978.** In 1949 the People's Republic of China was created The administrative power was concentrated in the central government and major party leaders at all levels of government. The party and the government had overlapping organizational structures, which afforded the CCP direct control of administration. The economic sector was to a large extent a part of the administrative system, which used strict plans and quotas to decide prices, capital investment, industrial inputs and outputs, and distribution of consumer goods. ## Public Administration (after 1978) The period of reforms however marked with two considerable facts: The recent modernization efforts emerge from the background of China's administrative history, which sets the context and starting conditions of these efforts; they include processes and values that strongly influence efforts today. Two fundamental path-dependent effects stand out. First, is the politicized bureaucracy. Due to the nonexistence of popular election and a competitive party system, control on bureaucracy was a major leverage to maintaining political power. Political compliance was assigned a higher priority than expertise in evaluating bureaucrats. Such a system tended to hinder the efforts to make the bureaucracy more professional. Second is the moralized, but sometimes immoral bureaucracy. Moral doctrines easily substituted for rationalized institutions and the spirit of rule of law; the opaqueness and complexity of the bureaucratic system further helped bureaucrats evade results and accountability. The traditional dominance of bureaucracy on society and its moral self-sufficiency made law abidance primarily an obligation of civilians. Bureaucratic dysfunctions commonly occurred due to high-powered, self-seeking behavior as well as the rigid conformity to rules or routines. # 5. Separation of Powers in China The Chinese Constitution does not establish the principle of separation of powers. The powers of state are concentrated into the people's congresses, including National People's Congress and local people's congresses (Article 2 of the Chinese Constitution) # 6. China - Administrative Adjudication China's Supreme People's Court is the highest court with the power of final adjudication. Local people's courts are composed with the higher people's courts at-the provincial level, the intermediate people's courts at the municipal level and people's courts at district level which are the trial courts in most cases. There are no administrative courts in China. ## Letter-and-Visit Complaint Before the foundation of the PRC, the party leader had already established a special institution to deal with the letter complaints. Although a plaintiff could not get a formal judgment, an order or a dictum through the letter- and-visit complaint, he/she might possibly solve the problems and settle down the disputes by complaining to the higher-level administrative organs or the central government. Therefore, many people were accustomed of resorting to complaints rather than suing in the courts or even going to complain after obtaining the judgments. Recently, the central government has already undertaken some reforms to reduce inappropriate use of complaint mechanism and encourage the citizens to solve the disputes through legal procedures. ## Administrative Reconsideration A mechanism of dispute resolution within the administrative branch. The citizens can bring up their complaints to the superior administrative organs or the people's governments at the same level. Legal provisions which stipulate the subject, procedures and remedies of administrative reconsideration. The plaintiffs can obtain formal decisions after the reconsideration, which could be sued in the courts. ## The Remedies of Judicial Review Administrative Litigation Law regulates several remedies: * to repeal or partly repeal the controversial administrative action possibly with the request for the administrative organ to re-make the decision, * to order the performance for the case of negligence, * to declare the illegality of the concerned administrative action but not to repeat it, to decide it as void * to modify the administrative action in case of obvious inappropriateness, * to order the administrative organs to continue the compulsory performance. # 7. China - The Civil Service Law of the People's Republic of China on Civil Servants of 2005 stipulates the obligations, rights and management of civil servants. The term "civil servant” means an employee who performs official duties in accordance with law, whose job is a part of government organizational set-up and whose salary and benefits are paid by the State. * Article 5 Civil servants shall be managed in accordance with the principle of openness, equality, competition and selection on the basis of merits, and in accordance with statutory powers, requirements, standards and procedures. * Article 6 Civil servants shall be managed in accordance with the principle of placing equal emphasis on supervision and constraint and on incentives and work related benefits. * Article 7 Civil servants shall be appointed on the basis of both moral integrity and professional competence, with the former taking precedence. Their appointment should be merit-based and widely inclusive in nature. Those who are appointed should be dedicated to work, impartial and upright, meet high political standards and deliver good performance. * Article 23 Civil servants for the posts of principal staff member at level 1 or below and other grades at corresponding levels shall be recruited through open examination, strict review, competition on an equal footing, and merit-based selection. There are Posts, Grades and Levels On the one hand, Chinese civil service adopted scientific management principles, a job classification system, recruitment by open competitive examination, and modern performance evaluation mechanism. On the other hand, the Chinese reform emphasized that the civil servant should be loyal to the CCP. The distinctive Chinese characteristic lies in combining Western merit-based concepts with a very high sense of heightened political responsiveness and control.