Research On The Legal Relief Of Administrative Factual Action

The transformation of government functions is always closely related to the constant development of the society,and the modern economic society requires the comprehensive service of the government,as well as the shift of the government functions from a negative role to a positive one.It positively advocates the construction of a service-type govemrnment,which should provide the members of the society with an increasing amount of services.A great number of administrative factual acts appear in the horizon of the public,and play an increasing important role,thus manifesting its value and significance.The occurrence of the administrative factual facts has subverted the traditional theory of the administrative law,but the existing theory of the administrative acts has already failed to adapt to the research on the new-type administrative acts;in particular,there objectively exist a large number of facts that the administrative factual acts have infringed against the administrative counterparts or social members;however,the administrative factual acts do not actually aim at the production of the contents of rights and obligations.A majority of administrative factual acts are implemented under the circumstance of the lack of legal basis;or despite of the existence of legal provisions.Such administrative factual acts are only implemented as the auxiliary and coordinated acts for realizing the purpose of the administrative management.In case of any infringement by the administrative factual acts,the administrative opposite party cannot get the effective relief due to the lack of express provisions of law and the support by the legal principles;hence,the issues of how to regulate the administrative factual acts and how to construct the perfect legal remedial system have become important in the current legal construction in China.The effective method of remedying the administrative factual acts is to intensify the regulation of and supervision on the administrative factual acts through the construction of the legal remedial system.We should incorporate the administrative factual acts into the scope of legal remedy,thus forming the unified and perfect remedial system for the administrative factual acts.We should safeguard the legal interests of the administrative opposite party,conduct effective supervision on the administrative subjects and their workers,and realize the legalization of adminictrativa acts All these have acquried the significant research value and juridical practice meaning.Now,such countries as the United States,Germany,France and Japan have paid attention to the remedy as to the conducting of effective supervision on the administrative factual acts,the construction of the perfect remedial system,and the incorporation of the administrative factual acts into the scope of the juridical and administrative remedies;however,at present,there is still a lack of research on and recognition of the theories of the administrative factual acts in China;no unified theoretical system for the administrative factual acts has been formed;and the remedy for the administrative factual acts is still within the grey zone.In order to fill the gap of remedy for the administrative factual acts,this article intends to start from the concept of the administrative factual acts so as to perfect the remedial system with respect to the administrative factual acts.The first part of the text expounds the generality of the administrative factual acts,including the development of the concept of the administrative factual acts,as well as its definition,features,classification and elements.With the change of the government functions from the social management to the service-type government,a large number of administrative factual acts play an increasingly important role in the real life.Faced with such change,the field of administration law put forward the concept of the administrative factual acts.If we want to make any constructive suggestions on the remedial system of the administrative factual acts,we should firstly acquire a complete perception of the theory of the administrative factual acts.The second party of the text mainly introduces the necessity of legal remedy of the administrative factual acts by the purpose of the modern rule of law and the demand for the reasonable trust benefit.The third party of the text mainly introduces the current situation of the legal remedy of the administrative factual acts in china.The current situation and existing of legal relief and non legal relief are analyzed in order to reflect on the remedial system of the administrative factual acts inchina.The four party of the text mainly introduces the current situation of the legal remedy of the administrative factual acts in abroad by means of the comparative method.The comparison is made with the remedy of the administrative factual acts,such as the system construction experience in Britain,the United States,Japan and Taiwan region.It analyzes the defects existing in the remedial system for the administrative factual acts in China,including such problems which exist in the system as the administrative proceeding,the administration system,the state compensation and the administrative recuperation.Through the comparison of the systems in different scopes of law,the article summarizes the advanced experiences in all countries and lays the theoretical and practice foundation for the perfection of the administrative factual acts in China.The five part of the text mainly puts forward the issue of perfecting the remedial system of the administrative factual acts in China;in the aspect of the administrative proceeding,perfection is made on such contents as the expansion of the scope of accepting cases,the method of juridical review of the administrative factual acts,the increase of judgment mode and the legal provisions with respect to the procedure of the administrative factual acts,as well as the conciliation and amicable settlement system for the administrative factual acts;in the aspect of the administrative review,the perfection should be made on such aspects as the review method of the administrative factual acts and the beforehand conductive procedure for compensation;in the aspect of the administrative compensation with respect to the administrative facts,we should provide for the remedial measures in a special chapter in the Law on State Compensation.The pioneering point of this article rests with the comparison of the remedial systems for the administrative factual acts at home and abroad.Combining with the current juridical practice and legislation in China,it puts forward the approach in China for the legal remedy for any damage-causing administrative factual acts,and the perfection of the legal remedial system in China.