On the afternoon of 26 April, the 10th Administrative Law Classic Works Reading Session of the School of Law at Southeast University was held in the fourth-floor conference room of the School of Law at Southeast University. This seminar was conducted in a hybrid format combining online and offline participation, co-organised by the Guanghua School of Law at Zhejiang University, the School of Law at Central South University of Finance and Economics, the School of Law at Dalian Maritime University, and the School of Law at Southeast University. Faculty and students from the four institutions engaged in in-depth academic discussions and exchanges centred on the chapter ‘Appendix Two: The Legal Binding Nature of Administrative Rules’ from the book Administrative Legislation and Administrative Standards by Japanese administrative law scholar Hiraoka Hisashi.
The seminar was chaired by Ma Jinfeng, a doctoral candidate at the School of Law, Southeast University. The participating experts included Professor Hu Minjie from the Guanghua School of Law, Zhejiang University; Professor Wang Yong from the School of Law, Dalian Maritime University; Professor Tan Binglin, Assistant Editor-in-Chief and Senior Editor of *Law and Business Studies*, Central South University of Finance and Economics; and Professor Liu Qichuan from the School of Law, Southeast University. Eight doctoral candidates delivered thematic presentations and shared their insights.
Event Recap
At the beginning of the event, Dr. Ma Jinfeng extended a warm welcome to the four professors and all the students in attendance, and provided a brief overview of the primary objectives and agenda of the book club meeting.
Professor Liu Qichuan from the School of Law at Southeast University delivered the opening remarks for the book club. Professor Liu Qichuan first expressed sincere gratitude on behalf of the School of Law at Southeast University to the three professors for their support of the event and extended a warm welcome to all the students for their active participation. The event aimed to establish an open and shared academic exchange platform through inter-university reading of classic works, with the goal of cultivating academic reading skills and paper-writing proficiency among law students at the undergraduate, master's, and doctoral levels. In his speech, he emphasised that academic research requires the collision of ideas and the integration of diverse perspectives. Since individualised reading can lead to limited thinking, in-depth dialogue between individuals with different academic backgrounds can effectively broaden cognitive boundaries. Therefore, an exchange system that combines academic depth with an open atmosphere should be created. Through the form of ‘meeting friends through literature,’ inter-university academic cooperation can be deepened, thereby stimulating innovative thinking among students during reading.
Session 1: The Effectiveness and Positioning of Administrative Rules
The first session of this reading club focused on the topic of ‘The Effectiveness and Positioning of Administrative Rules.’ This session featured special reports by Li Fang, a doctoral candidate at the Guanghua School of Law, Zhejiang University, and Zhang Youyou, a doctoral candidate at the School of Law, Zhongnan University of Economics and Law.
Presenter 1: Li Fang, Doctoral Candidate, Guanghua School of Law, Zhejiang University
Dr. Li Fang from the Guanghua School of Law at Zhejiang University presented a report titled ‘The Effectiveness of Administrative Normative Documents.’ Dr. Li Fang discussed the effectiveness of administrative normative documents from three perspectives: the context of effectiveness, the distinction between legal regulations and administrative rules, and the presumption of effectiveness under the principle of equality, based on the configuration of legislative power in China. He shared his research insights in detail.
First, Dr. Li Fang raised a question through the discussions of domestic and international scholars: Does validity have a context? Alikesi proposed three elements of legal concepts in ‘Legal Concepts and Legal Validity’: social effectiveness, content correctness, and authoritative formulation. This indicates that the concept of validity is layered and has contextual characteristics. Additionally, Professor Zhu Mang examined the basis of administrative normative documents in administrative litigation, proposing that such documents can confer legal efficacy on administrative actions through direct or indirect means. Professor Ye Bifeng proposed a criterion for distinguishing between internal and external administrative normative documents based on whether they involve the rights and obligations of the parties concerned. These differing perspectives all underscore the need to examine the efficacy of administrative normative documents within the specific institutional context and framework.
Secondly, Dr. Li Fang distinguishes between administrative regulations and administrative rules in German and Japanese public law to trace the issue of the externalisation of the effectiveness of administrative rules. German scholar Maurer distinguishes between regulatory orders and administrative rules based on the formal distinction between the internal and external aspects of administrative organisations, while Japanese scholar Shiono Hiro distinguishes between the two based on the substantive content of the ‘relationship between the administrative authority and private individuals.’ The author of this book, Hiraoka Hisashi, synthesises the views of Maurer and Shiono Hiro, proposing that the distinction between regulatory orders and administrative rules lies in whether they possess the ‘effect of unilaterally altering the rights and obligations of private parties.’ If administrative agencies establish norms with binding force but lacking legal authorisation, this would violate democratic principles. In a night-watchman state, where the legislature monopolises legislative power and administrative power is subordinate to legislative power, this may help to curb the adverse phenomenon of administrative agencies infringing upon citizens' rights. However, with the development of public services and welfare administration, administrative agencies have shifted from a binary opposition between public and private sectors to public-private collaboration. If the system of parliamentary monopoly over legislative power is maintained, administrative agencies may find themselves unable to act effectively. German and Japanese public law scholars may need to consider how to reconcile their legal heritage with modern state administration, but China does not necessarily need to be constrained by the assumption of parliamentary monopoly over legislative power. The issue China faces is that while administrative agencies possess the authority to formulate regulations, this regulatory authority is not grounded in law. In the absence of authorisation constraints, there are deficiencies in democratic legitimacy. Therefore, democratic processes can be strengthened through consultation or oversight enhanced through filing reviews.
Finally, she proposed the presumptive validity of administrative normative documents based on the principle of equality. Thomas, in his ‘Methodology of Law,’ categorises legal sources into three tiers: foundational legal sources, secondary legal sources, and ‘soft law.’ Administrative regulations fall under the category of secondary legal sources. Based on the concept of the legal system, the efficacy of normative documents is derived from the presumption of compliance with legal principles, but the true source of efficacy remains legal principles. Hiraoka Hisashi argues that compliance with the documents is, in essence, compliance with administrative practices formed based on the documents and consistent with the principle of equality. Beyond the principle of equality, Professor Hu Minjie examined the efficacy of administrative normative documents based on the principle of protection of legitimate expectations. Therefore, beyond the principle of equality, other principles can also support the efficacy of administrative normative documents. Thus, if stability and predictability are to be provided for administrative normative documents, anchoring the dynamism and stability of their efficacy through principles is clearly a more appropriate method.
Presenter 2: Dr. Zhang Youyou, School of Law, Zhongnan University of Economics and Law
Dr. Zhang Youyou from the School of Law at Zhongnan University of Economics and Law presented a report titled ‘The Rigid Boundaries of Soft Law: The Binding Nature and Normative Transformation of Administrative Rules.’ Dr. Zhang Youyou shared her research insights from five aspects: ‘soft law’ and administrative rules, the logic of the binding nature of administrative rules, a comparative examination of ‘binding nature’ and ‘normativity,’ the special circumstances in the Chinese context, and conclusions.
Dr. Zhang Youyou first explained the concepts of ‘soft law’ and administrative rules. According to Professor Luo Haocai's perspective, ‘soft law’ refers to social norms that do not rely on state coercive power for implementation, including guidelines, manuals, planning standards, etc. In this book, administrative rules refer to rules established by administrative agencies that lack formal legal efficacy and are used to guide internal administrative behaviour. She argued that administrative rules possess the characteristics of ‘soft law,’ with both sharing functional and binding logic similarities. Although soft law and administrative rules differ in origin and definition, their narrative logic in actual operation is highly consistent.
How do administrative rules acquire binding force? The prevailing view in contemporary German administrative law is the ‘self-binding theory,’ which indirectly acknowledges their factual legal binding force through the principle of equality. Administrative rules were originally tools for self-constraint by administrative agencies, established to regulate internal agency behaviour. Through long-term adherence to these rules, an administrative precedent gradually formed, which subsequently played a significant role in administrative practice, providing administrative agencies with relatively clear operational guidelines and ensuring the consistency of administrative actions. Meanwhile, the principle of equality plays a crucial bridging role, requiring administrative agencies to apply consistent standards when dealing with similar actions, thereby indirectly influencing administrative counterparts and establishing de facto binding force. Therefore, administrative rules do not inherently possess binding force but are endowed with it through consistent adherence and the application of the principle of equality.
However, the binding force of administrative rules is not equivalent to their normative nature. This binding nature does not stem from legal authorisation but rather from long-standing administrative practices. However, administrative rules possess the inherent potential to transition into normative rules, encompassing three stages: factual binding, legitimate expectations, and quasi-normative transformation. First, administrative agencies establish self-binding rules. Subsequently, parties develop legitimate expectations based on the long-term implementation of these rules. Finally, administrative rules are recognised by the judiciary or through legislation, thereby achieving the transition from soft law to quasi-normative rules.
Within China's legal framework, administrative normative documents differ from the administrative rules mentioned by the author. China's administrative normative documents not only apply to the internal management of administrative agencies but also possess certain legal efficacy externally, potentially exerting substantial influence on the behaviour of the general public. As internal management tools for administrative agencies, administrative benchmarks initially do not impact the external society. However, through long-term administrative practice, they may gradually influence the behaviour of the general public through the accumulation of administrative conventions and be transformed into norms with external legal effect through judicial recognition. Therefore, administrative rules must be framed by the principles of the rule of law and premised on procedural justice to avoid excessive administrative intervention and overreach, particularly in emerging fields such as the low-altitude economy, where the cautious use of administrative normative documents is essential to prevent the abuse of power.
Unit 2: Adinistrative Rules from a Functionalist Perspective
The second session of this reading group focuses on ‘Administrative Rules from a Functionalist Perspective.’ This session features special reports by Zhang Ye, a doctoral candidate at the School of Law, Dalian Maritime University, and Wang Sirui, a doctoral candidate at the School of Law, Southeast University.
Presenter 1: Zhang Ye, Doctoral Candidate, School of Law, Dalian Maritime University
Dr. Zhang Ye from the School of Law at Dalian Maritime University presented a report titled ‘The Legal Binding Nature of Administrative Rules: A Functionalist Perspective.’ Dr. Zhang Ye adopted the ‘indirect recognition theory’ proposed by Hiraoka Hisashi as his analytical framework, and shared his research insights from four aspects: the formulation of the issue, the indirect recognition theory under functionalism, the positive functions of the indirect recognition theory and their implementation, and the negative functions of the indirect recognition theory and their limitations.
Dr. Zhang Ye pointed out that traditional administrative law theory distinguishes between regulations and administrative rules based on formalistic standards, emphasising legal authorisation as the core criterion for determination. Accordingly, administrative rules are limited to documents with internal efficacy, originating from the inherent authority of the administration and not directly effective externally. While this classification upholds legislative authority, it struggles to adapt to modern administrative needs. In emerging fields such as welfare administration and risk regulation, legislative lag has led administrative rules to effectively assume the function of filling legal gaps. However, the ambiguity of their legal status hinders citizens' access to remedies, creating a structural contradiction between functional expansion and weakened efficacy. Judicial review also faces a dilemma: strictly adhering to traditional theory weakens constraints on discretionary power, while acknowledging legal binding force may undermine the principle of legal reservation.
Addressing the limitations of normativism, Dr. Zhang Ye proposes a functionalist analytical approach, focusing on elucidating the dual value of the ‘indirect recognition theory.’ This theory connects administrative practices with the principles of equality and protection of legitimate expectations through a dynamic interpretation of the legal framework: on the one hand, it requires administrative agencies to apply the same standards to similar cases and prohibits unjustified discriminatory treatment; on the other hand, it treats administrative rules as commitments to the public, protecting citizens' reasonable expectations. This flexible binding mechanism maintains normative flexibility, allowing deviations from conventions in special circumstances, while strengthening procedural constraints through the obligation to provide reasons.
The ‘indirect recognition theory’ has three positive functions: first, it stabilises behavioural expectations through administrative conventions, enhancing administrative credibility; second, it preserves necessary discretion to avoid rigid enforcement; third, it constrains the abuse of power through procedural norms. However, it also carries the potential risk of weakening legislative authority and raising the standards for judicial review. In response, Dr. Zhang Ye proposes a dual control mechanism: procedurally, strengthening public participation and rule transparency by establishing a consultation system during the rule-making process; and supervisory oversight by improving the filing review system to promote substantive review of administrative rules by the legislative branch, ensuring they align with legislative intent.
Dr. Zhang Ye's research breaks free from traditional formalistic constraints, offering new insights to address the ‘effectiveness dilemma’ of administrative rules. The ‘flexible constraint’ model constructed through a functionalist perspective respects the principle of legal reservation while acknowledging the practical normative value of administrative rules, providing significant reference value for advancing law-based administration and improving the administrative discretion benchmark system. As China is currently in a phase of deepening administrative rule of law, this theory holds significant practical significance for balancing administrative efficiency with rights protection and promoting the systematisation of the administrative rule framework.
Presenter 2: Dr. Wang Sirui, School of Law, Southeast University
Dr. Wang Sirui from the School of Law at Southeast University presented a report titled ‘The Non-Regulatory Nature and Binding Force of Administrative Standards from a Functionalist Perspective.’ He discussed the issue from three aspects: the relationship between binding force and the nature of administrative benchmarks, China's understanding of the nature of discretion benchmarks, the drawbacks of the direct recognition theory, and institutional arrangements from a functionalist perspective. He explored two core questions: ‘Why discuss whether administrative benchmarks have “regulatory” attributes?’ and ‘Why adopt a functionalist perspective?’ based on China's administrative legislation practices.
Dr. Wang Sui pointed out that Hiraoka Hisashi's theory posits a sequential relationship between regulatory attributes and legal efficacy: first, the regulatory attributes of administrative standards are confirmed, and then their external legal efficacy is derived from this. When discussing the binding force of administrative standards, the academic community often pre-determines their attribute classification. He systematically outlined the theoretical distinctions between Hiraoka Hisashi's ‘direct recognition theory’ and ‘indirect recognition theory’: the former asserts that administrative standards inherently possess the nature of regulations and thus generate legal efficacy equivalent to regulations; the latter argues that administrative standards are internal rules, and even if they generate external efficacy, the binding strength derived from the principles of equality and protection of reliance remains weaker than that of regulatory commands.
Research indicates that the Chinese academic community generally leans toward the ‘direct recognition theory’ in determining the nature of administrative discretion standards. Scholars such as Jiang Ming'an, Zhang Jiansheng, Yu Lingyun, and Zhang Shuyi all hold this view, forming a significant difference from the German and Japanese academic communities, where the ‘direct recognition theory’ is a minority view. Dr. Wang Siru emphasises that while this theoretical preference strengthens formal constraints on administrative power, it may lead to practical challenges—when administrative benchmarks are directly granted the legal force of regulations, it may result in the excessive expansion of administrative power, breaching the principle of legal reservation.
In response to the limitations of the direct recognition theory, Dr. Wang Sui proposed a functionalist analytical framework. He pointed out that normativism views law as the sole source of legitimacy, requiring all administrative actions to obtain legal authorisation. This ‘metaphysical view of law’ struggles to address the complexity of modern administration. In contrast, functionalism views law as an organic component of the political system, focusing on balancing administrative efficiency and rights protection through dynamic mechanisms. The study emphasises that functionalism does not correspond to government autonomy but, on the premise of acknowledging the ‘non-regulatory nature’ of administrative standards, constructs a constraint mechanism: it must both grant the relative party the right to relief through the externalisation of effectiveness and ensure that its binding strength is weaker than that of regulatory commands.
Unit 3: The Legal Logic of the Binding Nature of Administrative Rules
The third session of this reading group focused on the ‘legal logic of the binding nature of administrative rules.’ This session featured special reports by Yang Xiaole, a doctoral candidate at the School of Law, Dalian Maritime University, and Li Le, a doctoral candidate at the School of Law, Central South University of Finance and Economics.
Presenter 1: Yang Xiaole, Doctoral Candidate, School of Law, Dalian Maritime University
Dr. Yang Xiaole from the School of Law at Dalian Maritime University presented a report titled ‘The Legal Binding Nature of Administrative Rules: The Dissolution and Reconstruction of Traditional Legal Theory.’ Dr. Yang Xiaole approached the topic from the perspective of the governance transformation of modern administrative states, sharing his research findings in detail from three dimensions: research background, core issues, and successful pathways.
In terms of theoretical background, Dr. Yang Xiaole pointed out that the traditional public law theory, which limits administrative rules to internal legal efficacy, is facing dual challenges. On the one hand, administrative rules have extensively penetrated fields such as social security and environmental protection, thereby substantially impacting private rights. The tendency in German and Japanese judicial practices to grant administrative precedents factual binding force through the principle of equality reveals their practical breakthrough of traditional internality. On the other hand, from a functionalist perspective, administrative rules have developed quasi-legal binding functions through their professionalism and repeated application. Professor Hisashi Hiraoka's theory of ‘internal law externalisation’ represents a theoretical breakthrough of the traditional dichotomy between internal and external law. This conflict between reality and theory has placed traditional legal theory in a dilemma: adhering to the formal authorisation logic fails to address the need for unified standards of discretion and improved administrative efficiency, while relying on abstract legal principles for indirect constraints risks blurring the standards of judicial review.
Addressing the core issue of ‘the tension between power control and efficiency,’ Dr. Yang Xiaole reveals a balancing approach through case analysis. In the ‘Hyogo Prefecture Board of Education Admission Guidelines Case,’ the court invoked the principles of equality and procedural justice to revoke an administrative decision that violated long-standing administrative practices without reasonable justification, demonstrating the rigidity of discretion control. In the context of updating environmental standards and technical benchmarks, administrative agencies achieved a balance between efficiency and procedural justice by revising benchmarks through public hearings and scientific assessments, showcasing the flexibility of governance. She pointed out that Professor Hisashi Hiraoka's theoretical reconstruction proposed that the constitutional principle of equality (Article 14 of the Japanese Constitution) should grant discretionary benchmarks the status of ‘quasi-legislation,’ and that administrative enforcement deviating from administrative practices without reasonable justification constitutes a violation of the law. At the same time, the principle of protection of legitimate expectations should be strengthened to clarify that only legitimate expectations based on lawful benchmarks and supported by written documents are protected, thereby avoiding excessive constraints on administrative flexibility.
At the institutional construction level, she distilled a three-tiered safeguard mechanism: the indirect normative effect of the equality principle, the strengthening of adversarial rights through procedural transparency, and tiered judicial review standards. Based on this, the theoretical framework retains two flexible designs—the ‘case-by-case exclusion mechanism’ and ‘tiered review intensity’—ensuring that major discretionary flaws are subject to judicial and administrative constraints while respecting administrative professional judgment. This theoretical paradigm generates a triple effect across the dimensions of power separation, rights protection, and administrative efficiency, offering a new pathway to address the legitimacy challenges of modern administrative state governance.
Presenter 2: Dr. Li Le, School of Law, Zhongnan University of Economics and Law
Dr. Li Le from the School of Law at Zhongnan University of Economics and Law delivered a presentation titled ‘How Can Administrative Discretion Achieve Self-Restraint? — A Discussion Based on “The Legal Constraints of Administrative Rules.”’ Dr. Li Le used Professor Hiraoka Hisashi's theory of administrative rules as a starting point, systematically explaining the logical framework for constructing a self-restraint mechanism for administrative discretion from three aspects: conceptual reconstruction, application logic, and practical pathways.
At the theoretical foundation level, Dr. Li pointed out that Professor Hiraoka's ‘self-restraint theory’ is based on the binary division between administrative legislation and administrative standards—the former possesses external adjudicative benchmark efficacy, while the latter only has internal efficacy. The theory proposes the core formula of ‘equality principle + administrative practice = self-restraint’ to address the dilemma of the legal binding nature of administrative rules. This theory posits that once legally valid administrative rules have been applied over the long term and become established as conventions, any deviation from them by administrative enforcement without reasonable justification constitutes a violation of the principle of equality. This breaks through the traditional dichotomy between internal and external standards, resolving the crisis of trust interests and the risk of legislative authority being rendered ineffective caused by arbitrary changes to rules.
In terms of application logic, Dr. Li Le analysed the three key elements of administrative self-restraint: the existence of legally valid administrative conventions, the objective persistence of discretionary space, and the varying degrees of restraint determined by differences in rule types. Professor Hisashi Hiraoka categorises administrative benchmarks into four types: interpretation benchmarks strictly bound by law, judgment benchmarks with uncertain conceptual interpretation space, discretionary benchmarks with explicit discretionary freedom (typical domains of self-restraint), and independent administrative rules without legal authorisation (such as those in the field of grant administration, where restraint is achieved through the principle of equality). The intensity of restraint is positively correlated with the type of discretionary space, forming a hierarchical restraint system.
At the practical level, Dr. Li Le proposed a three-dimensional solution based on China's governance experience: first, promote the institutionalisation of practices by solidifying long-term practices into quantifiable standards through administrative discretion benchmark systems, such as the State Council's documents on standardising discretion authority and the detailed discretion circumstances and second, improving procedural control mechanisms, including the legal review of major penalties stipulated in the Administrative Penalty Law, the obligation to explain deviations from precedents, and the reinforcement of precedent constraints through administrative enforcement guidance cases; third, establishing internal supervision mechanisms guided by constitutional principles such as the prohibition of arbitrariness and good faith, integrating systems such as administrative decentralisation, hierarchical supervision, and administrative reconsideration to achieve a balance between rigid constraints and flexible governance.
Unit 4: External Application of Administrative Rules
The fourth unit of this reading session focuses on the ‘external application of administrative rules.’ This unit features special reports by Lu Zhengyi, a doctoral candidate at the Guanghua School of Law, Zhejiang University, and Lu Yitian, a doctoral candidate at the School of Law, Southeast University.
Presenter 1: Lu Zhengyi, PhD, Guanghua School of Law, Zhejiang University
Dr. Lyu Zhengyi from the Guanghua School of Law at Zhejiang University presented a report titled ‘Exceptional Violations of Administrative Rules,’ aiming to provide a more comprehensive interpretation of administrative rules from the perspective of ‘exceptional violations.’ The report explored the permissibility, criteria for determination, and constraint mechanisms of ‘exceptional violations.’ According to Hiraoka Hisashi's view, while acknowledging the binding nature of administrative rules, the binding nature of administrative rules differs from that of general laws, as it is a principled binding nature, and therefore ‘exceptional violations’ should be permitted. This view is also supported by scholars in China, making it a widely accepted perspective. However, why is it permissible to violate administrative rules under exceptional circumstances, even though administrative rules are acknowledged to have binding force? Is such ‘exceptional violation’ permissible for any administrative rule? If ‘exceptional violations’ are permitted, what are the specific criteria for permitting ‘exceptional violations’ of administrative rules? If ‘exceptional violations’ are permitted, how should such violations be appropriately constrained and controlled?
First, Dr. Lyu Zhengyi argues that the practical rationale for permitting ‘exceptional violations’ of administrative rules stems from the limitations of the rule-makers' understanding, the complexity of social phenomena, the difficulty of predicting and exhaustively addressing solutions, and the technical challenges of interpretation. This inherent incompleteness is a limitation of written rules. The normative justification for permitting ‘exceptional violations’ can be traced back to the legislature's authorisation within legal rules to achieve the goal of individual justice. However, this normative justification may not support the notion that all administrative rules can be subject to ‘exceptional violations.’ In practice, there is controversy over whether ‘exceptional violations’ are permissible in certain areas, such as benefit decisions in the social security sector. In areas where it appears that the ‘legislator’ has seemingly abandoned the goal of individual justice and may wish for administrative rules to exercise complete control, whether ‘exceptional violations’ are permissible warrants further consideration.
Secondly, we should establish criteria for determining ‘exceptional violations’ by addressing the tension between the ‘principled constraints’ and ‘exceptional violations’ of administrative rules, with the principle being ‘constraint’ and the exception being ‘violation.’ Under circumstances where administrative rules can be applied to make decisions, if adhering to the application of administrative rules would result in outcomes clearly inconsistent with legislative objectives or legal principles, the administrative agency should then ‘exceptionally violate’ the administrative rules. As for the specific circumstances included under the criteria for judgment, it is difficult to provide a general discussion, and such determinations may need to be made based on the specific circumstances of the administrative field.
Finally, regarding the constraint mechanism for ‘exceptional violations,’ more rigorous decision-making procedures should be established. For example, in practice, the practice of explaining the reasons for ‘exceptional violations’ varies, including explaining the reasons to the relevant party, explaining the reasons to the superior authority, and unclear objects of explanation. In fact, it should be clearly specified to whom the reasons should be explained, and it should not be handled ambiguously. The reasons should be explained to both the relevant party and the superior administrative authority.
Presenter 2: Dr. Lyu Yitian, School of Law, Southeast University
Dr. Lyu Yitian from the School of Law at Southeast University presented a report titled ‘The Externalisation of the Binding Force of Administrative Rules: A Case Study of the Judicial Application of the Power and Responsibility List.’ The report primarily explored the historical origins, theoretical derivations, and implementation pathways of the externalisation of the binding force of administrative rules.
First, the concept of administrative rules is defined by their ‘internal binding nature within the administrative system.’ However, from the perspective of their implementation, their binding force exhibits a clear externalisation. Professor Yanano Hiro listed two examples of the external efficacy of administrative rules. Although administrative rules do not directly bind the rights and obligations of citizens and only take effect within the administrative system, they actually exert influence on external entities, thereby generating factual external efficacy. The prevailing view holds that this factual external efficacy also possesses legal significance, generating legal external efficacy, and citizens may seek rights protection based on the external efficacy of administrative rules.
Second, from the theoretical derivation perspective, there are two sources for the externalisation of the binding force of administrative rules. The first is the principle of equality as the medium for the external legal binding force of administrative rules, and the second is the principle of reliance protection. Second, there are multiple theories regarding the process of externalising the binding force of administrative rules. The mainstream view is the indirect recognition theory, which holds that administrative rules must form administrative precedents to indirectly generate binding force through such precedents. Some argue that administrative precedents are unnecessary as a medium, as established administrative rules inevitably form future administrative precedents. In contrast, the direct recognition theory asserts that specific administrative rules can serve as comparative objects for the principle of equality, directly conferring legal binding force on administrative rules within a certain scope. Third, there are exceptions to the externalisation of binding force. As Dr. Lyu Zhengyi detailed earlier, the theoretical basis for exceptions lies in the fact that, compared to the strictness of legal binding force, the binding force of administrative rules is flexible and principled, allowing for exceptions.
Finally, from the perspective of judicial application, the externalisation of binding force is necessary. Taking the judicial application of the power and responsibility list as an example, there are three conditions that must be met for administrative counterparts to apply the power and responsibility list: first, the initiation condition: prior public disclosure; second, the relevance condition: vested interest; and third, the reference condition: based on laws and regulations. Second, for administrative agencies, administrative agencies form administrative practices through continuous administrative activities based on administrative rules, which are maintained due to the legal certainty of all parties, including private individuals. Administrative agencies should actively respond to references to the list of powers and responsibilities by administrative counterparts and courts and provide explanations. If an administrative agency claims to deviate from the application of the list of powers and responsibilities, it must provide reasons, and the reasonableness of such reasons is judged by the court. Third, due to the nature of administrative rules and their de facto external binding force, courts cannot directly apply them as the sole criterion for judging the legality of administrative activities, nor can they solely rely on them to evaluate the illegality of administrative actions. Using the list as the ‘sole basis for review’ is inappropriate, but using it as the ‘sole basis for reasoning’ is justified. The optimal state is to achieve the combined application of the list of powers and responsibilities with relevant regulations, ensuring consistent application under the legal order.
Expert Commentary
This section features comments and summaries by Professors Hu Minjie, Wang Yong, Tan Binglin, and Liu Qichuan in sequence.
Professor Hu Minjie, Guanghua School of Law, Zhejiang University
Professor Hu Minjie pointed out that the selection of Appendix II: The Legal Binding Force of Administrative Rules from Professor Hiraoka Hisashi's work as the reading text is closely related to China's unique ‘document governance’ practice context. She emphasised that normative documents in China serve a dual function in administrative practice: coordinating regional differences and enhancing administrative efficiency. Their governance logic shares similarities with Japan's post-war administrative guidance model, necessitating a balance between formal legality and substantive governance needs.
Regarding the discussion content, Professor Hu Minjie offered five academic observations: First, the conceptual definition of normative documents in China must transcend the constraints of the German-Japanese ‘laws-administrative rules’ dichotomy framework. and instead explore functionalist analytical pathways rooted in domestic practice, focusing on the actual efficacy of documents in law enforcement; second, the efficacy transmission mechanism of the ‘indirect recognition theory’ should be further studied in the Chinese context, particularly distinguishing the functional differences between administrative enforcement case guidance and judicial guiding cases, and establishing equality principle application standards suited to China's national conditions; third, the dynamic evolution characteristics of administrative normative documents warrant attention, both the direct binding force of professional technical standards and the differing positioning of document efficacy in academic research versus administrative litigation must be distinguished; fourth, current administrative procedure research should strengthen the perspective of safeguarding the rights of parties involved, breaking free from the limitations of the traditional administrative agency-centric paradigm; fifth, the hierarchical logic of judicial review intensity should be combined with document typology, such as applying differentiated review standards to ‘professional discretion-type’ and ‘policy creation-type’ documents.
Professor Hu Minjie specifically mentioned that Dr. Lyu Zhengyi's proposal regarding the permissibility of ‘exceptional violations’ of administrative rules essentially reveals the tension between formal rule of law and substantive justice, while Dr. Lyu Yitian's three-dimensional analytical framework constructed from a functionalist perspective offers an innovative approach to resolving this contradiction.
She concluded that Professor Hiraoka Hisashi's work provides important theoretical tools for understanding administrative rules. The issues raised in this seminar combine theoretical depth with practical value, and she anticipates that future research will further integrate China's governance context to drive the innovative development of administrative rule of law theory.
Professor Wang Yong, School of Law, Dalian Maritime University
Professor Wang Yong affirmed the value of cross-institutional academic collaboration. He mentioned that the regular exchange mechanism established between Dalian Maritime University and the Department of Legal Theory at Jilin University, through two to three offline activities per year, promotes in-depth dialogue among young scholars in the fields of constitutional law, administrative law, and legal theory. Previously, the two universities invited Professor Qichuan from China University of Political Science and Law to guide a joint reading of Martin Locke's ‘Public Law and Political Theory.’ This reading group continued the interdisciplinary tradition, with participants covering both constitutional administrative law and legal theory specialisations.
Regarding the discussion on administrative normative documents, Professor Wang Yong pointed out that the ‘power control’ tradition in administrative law research emphasises constraining public power through mechanisms such as the separation of legislative and administrative powers and the principle of ‘no authorisation, no action.’ Meanwhile, Professor Hiraoka's analysis of the external efficacy of administrative rules revealed their substantial impact on relative parties and judicial organs after penetrating the barriers of the administrative system. He specifically mentioned that Professor Hu Minjie's functionalist interpretation of the efficacy of documents from an administrative law perspective complements the students' analyses from the perspectives of soft law and informal legal sources, demonstrating the breadth of their research horizons.
From a jurisprudence perspective, Professor Wang Yong compared the different interpretative approaches to administrative normative documents under the “power control theory,” “management theory,” and ’balance theory.’ He proposed that if the expansion of documents is examined from the perspective of building a service-oriented government, its legitimacy may present a dual aspect of ‘detailing the law’ or ‘meeting public service needs.’ For example, administrative discretion benchmarks are interpretative tools under the ‘power control’ framework, but they have creative functions under the logic of service provision. This tension highlights the necessity of deepening theoretical research by combining the positioning of government functions.
Regarding classic reading methods for doctoral students, Professor Wang Yong offered three suggestions: first, closely follow the textual context to construct questions, avoiding excessive divergence; second, strengthen analytical dimensions by drawing on the administrative law community's refined research on rule typology and efficacy hierarchies; third, maintain a practical stance by integrating theoretical exploration with institutional norms. He emphasised that legal research must establish a connection between theoretical speculation and practical needs, especially in the context of the universalisation of administrative rules, where it is even more necessary to explore the dynamic balance between the concept of power control and service objectives.
Professor Wang Yong concluded that this reading group demonstrated the academic vitality of interdisciplinary dialogue and expressed his hope that in the future, legal theory and departmental law research would be further integrated to provide methodological support for the innovation of administrative rule of law theory with Chinese characteristics.
Professor Tan Binglin, Assistant Editor-in-Chief and Senior Editor of the Journal of Law and Business at Zhongnan University of Economics and Law
Professor Tan Binglin provided an in-depth commentary on the theme of ‘The Binding Nature and Functions of Administrative Rules,’ sharing insights from three dimensions: theoretical analysis, practical functions, and rule application.
Regarding the theoretical proposition of ‘the binding nature of law,’ Professor Tan Binglin proposed that a systematic analysis should be conducted from three levels: administrative agencies, administrative counterparts, and judicial agencies. He pointed out that the academic community has reached a consensus on the ‘self-binding nature’ of administrative rules, with its core being to regulate the internal behaviour of administrative agencies; the external efficacy should be judged based on whether the rules substantially affect the rights and obligations of counterparts, emphasising the importance of openness, clarity, and consistency with higher-level laws. In terms of judicial review, he argued that administrative rules only exert a ‘flexible binding force’ on courts, allowing judicial authorities to exercise discretionary power based on legality, professionalism, and reasonableness. He specifically noted that technical standards may receive judicial deference due to their professional authority, while the legality review of policy documents requires stricter scrutiny.
Considering China's administrative environment, Professor Tan Binglin emphasises that administrative rules play a core role in providing ‘legal legitimacy’ for administrative actions in practice. Using Article 33 of the Administrative Penalty Law as an example, he revealed the application challenges faced by frontline enforcers due to the absence of discretion benchmarks. He pointed out that administrative rules achieve the transformation of abstract legal concepts into concrete action guidelines by concretising uncertain legal concepts such as ‘minor violations’ and ‘timely rectification,’ thereby effectively alleviating enforcers' risk-averse tendencies. This “rule conversion” function is considered crucial for enhancing the consistency of enforcement and the credibility of administrative decisions.
Addressing the theoretical debate over whether administrative rules can be breached, Professor Tan Binglin proposed three criteria: first, deviations from discretion benchmarks must be based on the substantive premise of safeguarding individual justice, not merely procedural issues; second, current grassroots enforcement exhibits significant ‘rule dependency’ characteristics, and the explicit prohibition of deviations in regulations across multiple regions reflects the institutional logic of preventing the abuse of discretion. Therefore, the mechanism for citing normative benchmarks is more urgently needed than discussing exceptions to rule-breaking. Third, drawing on typical cases he reviewed while serving on the Administrative Review Committee, he analysed the challenges in applying rules when there is a conflict between higher-level documents and internal rules. He emphasised the complexity of balancing legal principles with historical legacy issues in practice and cautioned against the systemic risks that individual case rulings may trigger.
Professor Liu Qichuan, School of Law, Southeast University
Professor Liu Qichuan systematically expounded on the methodology of academic reading and provided professional guidance on the research reports of eight doctoral students. He summarised reading methods into three progressive levels: the foundational level requires grasping the core essence of the text, and he suggested using book reviews and notes to improve reading efficiency; the advanced level should focus on the author's argumentative logic, and he used Professor Hisashi Hiraoka's argument on the ‘indirect acknowledgement theory’ as an example to pointing out its exemplary value in constructing a logical chain through ‘administrative conventions’ and the ‘principle of equality’; the application level emphasises a constructive perspective in academic research, advocating the extraction of approaches to solving real-world problems from foreign classics. He particularly recommended Professor Liu Yanhong's article ‘How to Approach Books in the Golden Age of Technology,’ which elucidates the deeper implications of ‘utilitarian reading.’
During the commentary session, Professor Liu Qichuan provided detailed guidance on the doctoral students' reports. Regarding Li Fang's research, he commended the systematic nature of her literature review while suggesting further exploration of the “effectiveness context” issue; for Zhang Youyou's functionalist analysis, he proposed incorporating a legal philosophy dimension; in Zhang Ye's study on ’control mechanisms,’ he emphasised the need to combine the characterisation of administrative rules with institutional design; regarding Wang Siru's research on administrative standards, he suggested referencing Professor Hiraoka Hisashi's classification system.
Regarding Yang Xiaole's topic selection, Professor Liu Qichuan pointed out the need to strengthen the connection between traditional legal theory criticism and the construction of new ideas, and offered professional insights on the judicial attributes of the Japanese cases cited; for Li Le's institutional construction research, he suggested deepening the argumentation by incorporating the discussions on administrative discretion benchmarks from the Third Plenary Session of the 20th Central Committee of the Communist Party of China; in Lü Zhengyi's research, he particularly noted the importance of adhering to the normative expression of ‘administrative rules,’ and clarified the legal attributes of relevant provisions in the Beijing Municipal Regulations on Optimising the Business Environment. Finally, regarding Lu Yitian's presentation, he emphasised the need to clarify the criteria for determining the effectiveness of administrative rules.
Finally, Professor Liu Qichuan welcomed faculty and students to participate in the next offline reading activity at the School of Law, Southeast University. He expressed his hope that the reading club would establish a regular operational mechanism, build an inter-university academic community, and promote the in-depth development of administrative law research.
Activity Summary
Using books as a medium and thought as a bridge, the 10th Administrative Law Classic Texts Reading Session concluded successfully through the intellectual exchange of faculty and students from four universities. This reading session, guided by Professor Hisashi Hiraoka's theoretical framework, focused on the core theme of ‘the legal binding nature of administrative rules,’ showcasing the academic rigor of young scholars in delving into classic texts while highlighting the unique value of interdisciplinary and inter-institutional dialogue.
The boundaries of the efficacy and functional transformation of administrative rules are key issues in the construction of a rule-of-law government. From the domestic reflection on the German-Japanese ‘laws and regulations—administrative rules’ dichotomy framework, to the construction of a ‘flexible binding’ model from a functionalist perspective; from the analysis of the tension between soft law theory and normative documents, to the practical exploration of the hierarchical logic of judicial review—the four specialised seminars progressed layer by layer, revealing the deep-seated contradictions between ‘power control and efficiency’ and ‘formal rule of law and substantive justice’ in administrative rule research, while also providing diverse pathways to address the legitimacy challenges of China's ‘document-based governance.’ The participating scholars and doctoral students adopted a problem-oriented approach, closely integrating classical theories with local practices, demonstrating a research consciousness of ‘moving from text to practice.’
Finally, we extend our sincere gratitude to the faculty and students from Zhejiang University, Central South University of Finance and Economics, Dalian Maritime University, and Southeast University who participated in this event. May this shared reading serve as a starting point for us to continue pursuing the essence of the rule of law through dialogue between classics and reality, and to illuminate the practical path of administrative law governance with the light of ideas.
Text by: Li Jiaxin, Li Yanan, Zhao Ruihui
Images provided by: Yu Qianmiao, Tao Yuyang