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New Perspectives On The Force Of Administrative Action

Posted on:2006-11-09Degree:DoctorType:Dissertation
Country:ChinaCandidate:Q LiFull Text:PDF
GTID:1116360152488008Subject:Constitution and Administrative Law
Abstract/Summary:PDF Full Text Request
The force theory of administrative action possesses a very important role in administrative jurisprudence. Due to thin research situation on this subject nowadays, reconsideration on administrative action force by use of administrative process theory is of practical and theoretical significance.This dissertation is composed of six chapters as follows:. Chapter one considers the features of traditional administrative jurisprudence, which include: l.liberalistic rule of law state; 2. superiority of administrative power; 3.distinction in legal relationship between inner and outsider administration; 4.the core role position of administration action.Chapter two discusses the response of administrative process theory towards traditional administrative jurisprudence. Administrative process theory claims social ecological welfare rule of law state, equality between administration and private person, abolishment of borderline in administration. Social ecological welfare rule of law requires democracy based on liberty, social justice respecting individual rights, substantive rule of law surpassing formalism. Equality between administration and private person is established according to the acknowledgment of state and administration limit, hint of communicative action theory, and review of legal position of the private person. Abolishment of borderline in administration comes from reengeneering of the public sector.Chapter three reviews the methodology of administrative action force research. Administrative process theory substitutes for the core role of administrative action, which requests to probe into administrative action force by use of dynamic method, wholeness method and step method.Chapter four discusses the force of administrative action in decision-making stage, including the force of preparing action, establishment of the administrative action, taking effect of the administrative action and invalidation of administrative action. Due to non-formalization of the preparing action, the force of preparing action should be decided in concrete condition. The establishment of administrative action is finished when thesubject with administrative power informs its powerful meaning to the outside person. Administrative action is taking effect when it is decided, informed, accepted or its attachment is completed. Invalidation of administrative law lies mainly in the standard and procedure of its identification.Chapter five discusses the force during the time of continuation. The force of continuation is the force without impact by defect. The binding force is the effect binding others with content, fact and reason. The force of enforcement is the protecting force which safeguards the realization of administration action.Chapter six reviews the force in dispute stage. The force with no dispute takes effect when relief time limit is over. If the dispute is put forward, administrative action has no force with no dispute and its enforcement must be delayed. During litigation, if the agency changes its action, the plaintiff may change its claim or continue to confirm the suit. When administrative action becomes certain, no change should be allowed. This is called the force without any change.
Keywords/Search Tags:administrative process theory, force, establishment, taking effect, invalidation, force of continuation, binding force, enforcement, force without challenge, force with no change
PDF Full Text Request
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