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Administrative Proceedings Type Of Research

Posted on:2004-03-18Degree:DoctorType:Dissertation
Country:ChinaCandidate:H WuFull Text:PDF
GTID:1116360095955772Subject:Procedural Law
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The administrative proceedings mode is a comparatively new subject not gaining enough study by the theoretical cycle in China's Mainland now. This dissertation is intended to carry out an elementary but systematic analysis of it, only to do some good to the construction of China's administrative proceedings system.This dissertation is divided into six chapters. Chapter one is concerned with the basic theoretical issues of the administrative proceedings mode, which mainly involves its meaning, classification, particularity, theoretical and constitutional foundations of its establishment, function, normal pattern and so on. In this chapter, the mode of proceedings is rigidly distinguished from the sort of proceedings when the meaning of the administrative proceedings mode is probed into. The sort of proceedings is classified according to the specific content of the solicitation, while the mode of proceedings is classified in allusion to the whole proceedings. Judging from the external, there is no mode of administrative law in common law system. However, this dissertation points that the countries of common law system have their own judicial review. Thus, this dissertation defines the mode of administrative law in a wide sense, viz. a certain sort of proceedings of the same inscape, the same hearing rules and fashion and the same kind of decisions. This definition is given from an essential angle, including not only the administrative proceedings mode in civil law system but also judicial review in common law system.Although in some countries, administrative proceedings system originated from civil proceedings system, but it has its particularity because the administrative proceedings is a reciprocity course between administrative power and judicial power and is also concerned with public interest. In the legal field, the existence of any legal system has its own theoretical foundation. The theoretical foundation of administrative proceedings and the administrative proceedings mode, generally speaking, should be rule of law, which is embodied in the principles of " no relief, no right" and "the relief for right should be in effect". At the same time, the specific rules of the constitution are very important to the establishment of the administrative proceedings mode.The functions of the administrative proceedings mode are mainly embodied in protecting citizens' rights, intensifying judicial review of administrative acts, systematizing administrative proceedings and deepening theoretical research on administrative proceedings.The normal pattern of the administrative proceedings mode is an important issue concerned with the protection of citizens' rights. Based on synthesizing and comparing several kinds of normal patterns in the world, this dissertation reckons that, in order to avoid impairingprotection of citizens' rights due to incomplete enumeration, the normal pattern of the administrative proceedings mode in China had better adopt the instantiation method rather than the enumeration method.Chapters from two to four mainly study the development history of the administrative proceedings mode, the theory on forms of judicial review in common law system, and the theory on the administrative proceedings mode in some representative civil law system countries.The dissertation points that, the development history of the administrative proceedings mode falls into three epochs: germination, establishment, and development. The administrative proceedings mode originated from the writ system of England, and appeared in France in the 1800's, then it extended to Germany, USA, Japan and other countries. The administrative proceedings mode took on different development tendency in the two Law Systems. It tended to be diverse and profound in civil law system, while it tended to be simplified in common law system, although they were of the same fundamental purpose to offer better protection of human rights and intensify the judicial control of administrative power. Thus, the administ...
Keywords/Search Tags:administrative proceedings mode, forms of judicial review, administrative repeal lawsuit, demanding-performance-of-liabilities lawsuit, administrative granting lawsuit, administrative affirmation lawsuit, judicial review of abstract administrative act
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