Understand the modern licensing concept and innovate industrial and commercial administration

Understand the modern licensing concept, innovate industrial and commercial administration

The Administrative Licensing Law, which was implemented on July 1 this year, is the first administrative licensing law in the world. This administrative licensing law is an inevitable outcome of the profound transformation of Chinese society. It embodies the development achievements of the three civilizations. The Administrative Licensing Law has innovated the concept of administrative licensing and promoted revolutionary changes in the entire administrative management system. Undoubtedly, it will also bring new challenges to the administration of industry and commerce.

I. The concept of administrative licensing Article 2 of the Administrative Licensing Law stipulates that the administrative license referred to in this Law refers to the act of an administrative organ that, according to the application of a citizen, legal person or other organization, has been examined according to law and is permitted to engage in specific activities.
Second, the administrative license has the following legal characteristics
1. The content of the administrative license is an activity prohibited by national laws. An administrative license is the release of prohibited content set by laws, regulations, and administrative regulations when a specific object complies with relevant legal conditions, allowing it to engage in a particular activity and to enjoy certain rights and qualifications. For example, in order to ensure public safety and maintain traffic order, the state issues a driving license to people who meet certain skills through examinations, etc., and gives them the right to drive a car.
2. Administrative licensing is an act that should be applied for. Administrative licensing is an act that the administrative agency permits relatives to engage in laws, regulations, and administrative regulations that prohibit citizens, legal persons, and other organizations from acting. As citizens, legal persons, and other organizations that are relatives of administrative licenses, to obtain such a ban, it is necessary to Have the specific conditions stipulated by the corresponding laws, regulations and administrative regulations, and make corresponding expressions to the administrative organs. The form of the expression is the license application, such as the "application for pre-approval of enterprise name" and the application for company registration. 》. The applicant submits its own permission request to the administrative organ through the application form, and explains the corresponding legal conditions that it has. The administrative authority can grant a license by reviewing the applicant's request and determining that it has the appropriate conditions.
3. The administrative license is a specific administrative act that the administrative organ gives the administrative counterpart a certain legal or legal right. Such legal or legal rights granted by the executive to the counterpart of the political bank are usually valid only for a certain period of time. Such administrative actions must have certain specific formal requirements. The specific form requirements are licenses and licenses. The specific names include the permit, the permit, the approval, the qualification certificate, and so on.
4. The administrative licensing must have clear legal provisions, and the scope of the license must not exceed the legal limit. Licensing is a ban on the basis of a general prohibition. If an administrative agency issues a business license, it allows the relative person to engage in certain business activities, but at the same time prohibits other people from engaging in business activities at will. Others who do not have the permission of the administrative organ, such as engaging in the corresponding business activities, are unlawful operations. Will be subject to administrative penalties according to law.
Third, the concept innovation of the "Administrative Licensing Law"
1. Service Administration Concept The Administrative Licensing Law will protect the legitimate rights and interests of citizens, legal persons and other organizations, safeguard public interests and social order, and as its legislative purpose, it will be convenient, efficient, and provide quality services as the basis for implementing administrative licensing. in principle. At the same time, the Administrative Licensing Law stipulates a number of licensing methods and systems for facilitating applicants, emphasizing that administrative agencies implement administrative licensing and supervise and inspect administrative licensing matters, and in principle, no fees are charged. These regulations reflect the service administration concept in the establishment and implementation of administrative licenses.
For a long time, the government has been accustomed to managing economic affairs and social affairs in the form of planning, approval, and licensing. Under market economy conditions, the government is only the maker of market rules and the regulator of the market environment. Regardless of the formulation of the rules or the supervision of the market, it provides services to the market, enterprises and citizens. Thus, the government's management objectives turn to correcting "market failures" and make up for "market defects," and management methods should also be changed from commanding the economy to serving the economy. The establishment of the service administration concept in the legislation of administrative licensing is an inherent requirement of the development of the socialist market economy, and it is also a realistic reflection of the people's democratic consciousness, legal consciousness, competition consciousness and the awareness of participating in politics.
2. The limited administrative concept "Administrative Licensing Law" only allows monopoly enterprises that directly relate to national security, public safety, personal health and life, property security, limited natural resources development and effective allocation of limited public resources, and public interests. Administrative licenses are set for matters such as market access. Even if it is the above matters, it is not always necessary to have an administrative license. Where the regulation of market competition mechanism, the self-discipline management of industry organizations and intermediaries, and the use of post-supervision by administrative agencies can be regulated, administrative licenses may not be established. This provision of the Administrative Licensing Law limits the scope of government regulation of people's social and economic life and establishes a modern administrative concept of limited administration.
Under the economic conditions of the project, major issues must be approved and approved by the government, and the functions of the government are all-encompassing. This kind of omnipotent government management model restricts the freedom of market entities and individual citizens, hinders the development of the market economy and the individual enthusiasm and creativity of citizens. The in-depth development of market economic conditions requires a reasonable definition of government functions, and requires the government to withdraw from things that should not be managed, "cannot be managed", or "not well managed." The administrative concept of limited administration is an inevitable requirement of economic transformation. The Administrative Licensing Law restricts the scope of administrative licensing matters and fully reflects the requirements of the rule of law government to reduce regulation and loosen regulations. By restricting the scope of administrative licensing matters, the law removes a large number of unnecessary regulations that the government has implemented in the past, and also frees market entities and individual citizens; on the other hand, it transfers certain necessary regulations to industry organizations and intermediaries. . Only a small amount of administrative licenses that must be implemented by the government and truly belong to the category of “public goods” are implemented by the government, which promotes the transformation and transfer of government functions and promotes the transformation of the government from “all-round government” to “limited government”.
3. Fair Administration Concept The Administrative Licensing Law takes the normative licensing program as an important goal of legislation and stipulates a series of rules and systems to guarantee fairness and fairness, including: determining the fairness and fairness as the basic principle of administrative licensing, and stipulating administrative The authorities shall treat all applicants for grants equally. Anyone who meets the statutory conditions and standards shall be given an equal opportunity to obtain an administrative license. They shall not be inferior to each other; for a limited number of administrative licenses, if two or more applicants meet the requirements, The statutory conditions and standards require the administrative organ to grant permission according to the order in which the application is accepted, or to determine the licensee through fair competition such as bidding, auction, and unified examination; the administrative agency examines the administrative license application and finds that the licensing matter is directly related to the third party. If a person has a material interest, the third party shall be informed that the applicant and the interested party have the right to make statements and defenses, and the administrative organ shall fully listen to the opinions of the applicant and interested parties. The above provisions reflect the concept of fair administration.
The fair administrative concept reflects the rational positioning of the government's role under the conditions of market economy. The role of the government's "referee" requires the government to establish a fair and equitable procedure for the implementation of administrative licensing, to prevent partiality, discrimination, and to prevent unequal treatment.
4. The transparent administrative concept "Administrative Licensing Law" establishes the open principle of licensing implementation and a corresponding set of restrictive mechanisms. First of all, the law requires that the matters, conditions, and procedures of the administrative license must be made public, and no black-box operation is allowed. Second, the administrative agency implements the administrative license. Depending on its nature, some must go through a fair competition program such as open bidding and auction, and some must pass The unified examination is premised, and some must be inspected, tested, and quarantined according to technical standards and technical specifications. Any administrative licensing that has not passed these statutory disclosure procedures will be revoked or confirmed by the competent authority; in addition, the administrative Where the license involves the applicant or the interested party's material interests, the counterpart shall apply and the administrative organ shall hold a hearing for it; finally, the results of the administrative license shall be made public and accept the general supervision of the relative and the public.
Transparent administration is a natural extension of fair administration. The principle of openness and transparency and its restrictive mechanism are of great significance for preventing corruption and abuse of power by administrative organs and their staff and building a clean government.
5. Efficient administrative concept The Administrative Licensing Law stipulates the principle of efficiency as the basic principle for the implementation of administrative licensing, and has established a series of corresponding rules and systems for this purpose, mainly including: the people's governments of provinces, autonomous regions and municipalities directly under the Central Government have been approved by the State Council, based on streamlining The principle of uniformity and effectiveness may determine the administrative authority of an administrative organ to exercise the relevant administrative organ; if the administrative license requires review by multiple internal institutions within the administrative organ, it shall determine that an institution uniformly accepts the application for administrative licensing and uniformly delivers the administrative licensing decision. If the administrative license is to be implemented by two or more departments of the local people's government according to law, the people's government at the same level may determine that the application for permission is accepted by one department, and the relevant departments shall separately submit their opinions for unified handling; for some administrative licenses, the local people's government may organize The relevant departments shall handle the case jointly and centrally; if the applicant applies for an administrative license, the application materials provided by the applicant may have errors such as typos and calculation errors that may be corrected on the spot. The administrative organ shall require the applicant to correct it on the spot, and may not have such errors in the application materials. If the application materials are incomplete or do not conform to the statutory form, the administrative organ shall inform the applicant of the correction at one time; if the application materials submitted by the applicant are complete and conform to the legal form, and the administrative organ can make a decision on the spot, it shall make a decision on the spot. If a decision cannot be made on the spot, the decision shall be made within the statutory time limit. If the decision cannot be made within the statutory time limit, it may be extended for up to 10 days with the approval of the person in charge of the administrative organ, and may be extended for 45 days in a specific case. These principles and systems fully reflect the public administration concept of efficient administration.
Due to various reasons such as concept, system and specific work system, some government agencies do not provide convenient, fast and efficient services to the relatives when implementing administrative licensing activities. Instead, they set up various cumbersome procedures and procedures. Relatively man-made licenses often run several or even dozens of government departments, spending months or even longer. The implementation of the Administrative Licensing Law will undoubtedly play an important role in eliminating the inefficiency of the administrative agencies to promote, drag, and work inefficiently.
6. The stability and predictability of the responsibility administrative concept is a basic feature of the law. Rational law should provide reasonable psychological expectations for people's behavior. The Administrative Licensing Law stipulates that after an administrative counterpart obtains an administrative license according to law, the administrative organ may not revoke, change or cancel its license without authorization; when the laws, regulations and rules on which the administrative licensing decision is based are amended or abolished, or the basis for issuing an administrative license When there is a major change in the objective situation, the administrative organ may, in order to change or terminate the administrative license that has already taken effect, in accordance with the law for the benefit of the public interest, but shall compensate the property losses caused by the administrative counterpart to the law; If it is likely to cause significant damage to the public interest, it shall not be revoked. If the administrative license decision made by the staff of the administrative organ is abused or neglected, the administrative organ shall be compensated according to law. The above-mentioned series of regulations of the Administrative Licensing Law affirmed the principle of trust protection in the form of national legislation for the first time and established the concept of responsible administration.
The concept of responsible administration requires the government to establish an internal responsibility system for the implementation of administrative licenses. More importantly, the concept of responsible administration firmly believes that the rule of law government is a credible government and requires a sound and trustworthy program.
Fourth, adapt to the modern licensing concept, reform industrial and commercial administration, industrial and commercial administration, is an important part of the government's economic management. The concept innovation of the Administrative Licensing Law will have far-reaching impact on the existing industrial and commercial administrative regulations, systems and working mechanisms. The administrative administration of industry and commerce must adapt to the concept of modern administrative licensing.
1. Adhere to the principle of convenience and build a service-oriented industry and commerce. The principle of convenience for the people as stipulated in the Administrative Licensing Law requires the government to provide good services in the administrative management process. As far as the implementation of administrative examination and approval is concerned, online acceptance, online annual inspection, and online examination and approval are modern approval methods that reflect the principle of convenience. Our current methods of acceptance and acceptance conditions are not fully compliant. It is necessary to open a special electronic mail box for external approval as soon as possible; publicize various communication addresses and related numbers to the public through the media; formulate countermeasures in terms of operational procedures, equipment requirements and the quality of the approval personnel, and gradually support them. As far as the relationship between management and services is concerned, we should not oppose management and services. When we talk about services, we will give up some principles and talk about management to downplay services.
2. Establish a limited government concept and reduce the administrative examination and approval items. Among the examination and approval items implemented by our industrial and commercial systems, some are matters that can be regulated by the independent decision of the enterprise. Some are matters that can be solved by means of post-supervision, and some are matters that can be effectively adjusted by the market competition mechanism. We must look at the problem from the perspective of reform, we must look at the problem from the perspective of development, and if we can cancel the examination and approval items that do not conform to the direction of review and reform and do not conform to the spirit of the Administrative Licensing Law, we must cancel it first and not implement it to adapt to the construction. “Service-oriented business” further optimizes the requirements of the economic development environment.
3. Respect the rights of the parties and ensure fair administration. Follow the principle of fairness and take seriously the party's statement and right of defense in the administrative licensing program. If it is found that the licensing matter directly affects the third party’s material interests, the third party shall be notified. The statement and defense of the applicant and the interested party shall be fully heard. The industrial and commercial authorities did not hear the administrative licensing act. It is urgent to study the specific scope, form and procedures of the hearing and organize the implementation in accordance with the requirements of the Administrative Licensing Law.
4. Adapt to transparent administrative requirements and further improve the administrative law enforcement publicity system. In 2001, the Jiangsu Provincial Industrial and Commercial System implemented the administrative law enforcement publicity system, but the content required for publicity was limited to the catalogue of materials to be submitted for approval. In the next step, it is necessary to further improve the administrative law enforcement publicity system. The basis, conditions, quantity, procedures, deadlines and application texts of the relevant licensing items shall also be publicized in accordance with the provisions of the Administrative Licensing Law.
5. Avoid externalization of internal programs and improve administrative efficiency. The implementation of administrative examination and approval by multiple internal agencies still exists in the industrial and commercial system. For example, the annual inspection of advertising companies, the current practice is that enterprises go to the advertising office first, and then to the individual. When the annual inspection enterprise needs to change its business license or needs to change first to pass the annual inspection, it also involves coordination issues in different offices. It is necessary to strengthen coordination and ensure that an organization uniformly accepts applications for administrative licenses and uniformly delivers administrative licensing decisions.
6. Establish the concept of “integrity and industry” and exercise the right to revoke cautiously. According to the principle of trust protection, the reasonable trust of citizens and legal persons in government commitments should be protected; if the government changes its commitment to citizens and legal persons, it should be compensated for whatever reason. Even if there are legal reasons, or if the circumstances of the original permit have changed significantly, compensation for damage to citizens or legal persons shall be compensated. In our actual work, the situation of arbitrarily withdrawing the business license is still happening. To implement the "Administrative Licensing Law", the administrative licensing items that violate the law, based on the need to protect the public interest, shall be revoked; if the revocation may cause significant damage to the public interest, it shall not be revoked; Considering the nature and extent of the license decision, the cause of the illegal decision of the administrative license, and so on, the decision is made realistically. If the illegal act lasts for a long time, the first thing to consider is to order correction and promote its rectification. Any act that arbitrarily exercises administrative powers and arbitrarily revokes the administrative licensing decision shall be resolutely put an end to it.

Through the analysis of the application of the administrative license to the administrative authorities for industry and commerce, it is not difficult to see that the law gives the industrial and commercial administration authority the right to administrative licensing in a large scope. As an administrative law enforcement officer, the law of the industrial and commercial administration must be earnestly learned. , regulations, administrative regulations, in the work can better implement the "Administrative Licensing Law."

Reference materials:
The Administrative License Law of the People's Republic of China;
"Administrative Law" - Law Press, July 1998, the first edition of "Law of the Law" - Jilin People's Publishing House, December 1998, the first edition of the "Commercial Industry and Commerce Administration Laws and Regulations" - Economic Management Press
The first edition of the January 1996 edition of the "Commercial Administration Regulations for Industry and Commerce"--Economic Management Publishing