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Judicial Review Of Administrative Acts

Posted on:2003-04-25Degree:DoctorType:Dissertation
Country:ChinaCandidate:B Q ZhaoFull Text:PDF
GTID:1116360065462108Subject:Legal theory
Abstract/Summary:PDF Full Text Request
Judicial review of administrative action (hereinafter called judicial review) is an academic issue of great importance as well as a practical one of great significance. By using historical, comparative and positive research methods this dissertation makes a systematic study on such issues as the origin, characteristics, scope and standards of judicial review, and puts forward some constructive suggestions and ideas on the improvement and perfection of the judicial review system of our country, with judicial control of executive and administrative power as its 'starting point, with focus on the theory and practice of judicial review in Anglo-American Law and Continental Law, and with the improvement and perfection of the judicial review system of our country as its purpose.The whole dissertation falls into five chapters. Chapter 1 first gives a definition to the concept of judicial review. After examining the supervision and control of executive and administrative power by the distinctive subject(s) of judicial review in each of the two major law systems, it defines judicial review as " the legal system in which the judiciary, upon the request of a litigant who thinks that his (her) legal rights and interests have been infringed by an administrative action of an executive or administrative organ, reviews the constitutionality, legality and reasonableness of the administrative action and adjudicates upon them accordingly". Next, with a historical examination of the origins of the judicial reviews of the two major law systems, it holds that although it succeeded in form and in some way to the traditions that developed in the feudal period of monarchy, judicial review was actually established only after the bourgeois revolution in modern times. Finally, it makes comparisons between the characteristics of the two major law systems.Chapter 2 discusses the basic theoretical issues of judicial review in four respects, namely, the compatibility between judicial review and democracy, the principle of the division and restriction of power, the principle of the rule of law, the principle of human rights, and reveals the legal foundation and value foundation of judicial review.Chapter 3 analyzes the common tendency of the world in the scope of judicial review, namely, in the breadth of judicial review, sticking to the principle of the availability of judicial review, and in the depth of judicial review, sticking to the principle of limited review. In discussion of the breadth of judicial review, it combines the concept of "administrative action" with the breadth of judicial review, and holds that the definition of administration action is actually a definition of the breadth of judicial review without considering the various types of administrative action which oust judicial review according to legal provisions and judicial-practice. And on a comparative basis, it gives a broad definition to "administrative action". In discussion of the depth of judicial review, it expounds the depths concerning legal issues, facts and administrative discretion reviewed by countries of the two major law systems, both from the viewpoint of theory and from that of practice.Chapter 4 first explains the sources of the standards of judicial review and the basis for its creation, and focuses on the values of the procedural standards of judicial reviews. Then it gives specific explanations about the major standards of judicial review of the two major law systems.Chapter 5 first analyzes the current status of judicial review in our country, and holds that one of the fundamental problems which affect the efficacy of the current judicial review of our country is that the outer system of judicial review is not in proper order, to which it offers some practical countermeasures. Next, it discusses some issues concerning specific administrative action. In respect of the breadth of judicial review, it holds that the scope of judicial review of specific administrative action should be broadened in our country to include administrative acti...
Keywords/Search Tags:judicial review, administrative action, human rights, democracy, Anglo-American Law, Continental Law, legality
PDF Full Text Request
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