The Logic And System Construction Of The Administrative "Appeal-Decision" Relationship

In this paper, the author has mainly compared the relationship between administrative appeal and the decision with that between civil appeal and the decision, and has also made a preliminary study of the logical consistency and non-consistency of the relationship between administrative appeal and the decision, as well as the system construction of the administrative judgments. This article can be divided into six chapters:The first chapter:The explanation of the relationship between administrative appeal and the decision. The author analyzes the meaning and significance of the "appeal" and the "decision",the basic connotation of the relationship between the appeal and the decision in administrative procedure, the corresponding fundamental questions of legal theory in this area, and its research value. So-called administrative "appeal-decision" relationship is actually the legal relationship between administrative appeal and the decision, which totally implicates two aspects of connotation. On the one hand, the administrative appeal restricts the corresponding administrative decision made by the court. On the other hand, the court decision has a reaction to the claim of the plaintiff. Research on the "appeal-decision" relationship in administrative procedure would expand the scope of the basic theory in Administrative Litigation Law, enrich the types of administrative decision, as well as improve the administrative effectiveness of trial practices, which has both strong theoretical value and practical value.The second chapter:The construction of the logical frame of the administrative "appeal-decision" relationship. The author mainly focuses on the study of the features of the administrative "appeal-decision" relationship, when both the subjective public rights and the objective legal order are in the ideal model. In the subjective public rights model, the decision must correspond to the claim. But on behalf of maintaining the objective order, the decision may not necessarily correspond to the claim. China’s administrative proceedings shall be defined to pursue the unity of the remedy of subjective public rights and the maintenance of objective legal order, which is determined by the nature, the purpose and the function of the Administrative Litigation Law. The principal aspect of this contradictory unity is the maintenance of objective legal order, which rests on the Constitution and the Administrative Litigation Law. The value of our country’s administrative proceedings model is not only a tool to analyze the administrative "appeal-decision" relationship, but also supply a logical mainline for this paper.The third chapter:The anylysis of the logic of the administrative "appeal-decision" relationship (一).In this chapter, the author, by the path of subjective public rights remedy, demonstrates the inherent relationship, among the subjective public rights, administrative procedural rights, procedural appeal, and the administrative decision, are highly consistent in the logic as well as in the contents. That is to say that the subjective public rights confine the types of the administrative procedural rights. If one kind of subjective public rights were infringed upon, the corresponding administrative procedural rights should be entitled to make up for it. The kinds of administrative procedural rights determine that of the procedural appeal. What the plaintiffs could claim decide what kinds of the procedural appeal they shall recommend. Then the procedural appeal will strictly confine the scope of the court decision, which must be not beyond the claim of the plaintiff, except enacted by prior legislation. The logical anylysis, by the path of subjective public rights, laids a theoretical foundation based on definiting precisely the administrative "appeal-decision" relationship and system construction.The fourth chapter:The anylysis of the logic of the administrative "appeal-decision" relationship (二). In this chapter, the author, by the path of objective legal order maintenance, probes into the logic and system construction of administrative "appeal-decision" relationship. Whether the legality of administrative acts and the administrative effect correspond to each other determines the logical relationship, between the administrative appeal and the decision, is consistent or not. Considering these factors such as public interest, legal stability, administrative efficiency and so on, the illegality and the efficiency of administrative acts violating law are not necessarily consistent, which consequently results in the inconsistence between the administrative appeal and the decision under the state of objective legal order, because we evidently need to weigh the value of justice and efficiency, as well as the value of public interest and personal interest. Taking a long view, the frame of the decision system in the administrative proceedings should contain ratification mechanism, conversion mechanism and mend mechanism. Nevertheless, at present, mend mechanism must be established as soon as possible.The fifth chapter:The reconstruction of the principle of the "appeal-decision" relationship. In this chapter, the author firstly analyzes the connotation, the theoretical basis and the limitations of the so—called "decisions should be made in accordance with the claim of the plaintiff" principle, and then furthermore demonstrates the principle, that decisions should be made in accordance with the effectiveness of administrative actions, should be established.As to its application, the author also brings up his original suggestions. The so-called "decisions should be made in accordance with the claim of the plaintiff" principle prohibit the judges from making decisions beyond the plaintiffs’claim, whose theoretical basis are these doctrine such as passivism of justice, principle of disposition and procedural due process. This principle, however, ignores the specificity of the nature of administrative proceedings, the object put on trial, and the subjects of the legal relationship. Meanwhile, it doesn’t conform to modern trend in the area of Administrative Litigation Law. Taking into account the nature of the "appeal-decision" relationship in Administrative Procedure Law, the author argue that the principle "decisions should be made in accordance with the effectiveness of administrative actions" should be established instead of the principle "decisions should be made in accordance with the claim of the plaintiff". The performance of its reasonableness as follows:fitting the inherent logic of the principle of administrative proceedings; clarifying the application of the type of administrative decision; intrinsically containing the response to the plaintiffs appeal; reflecting the judicial character of the administrative jurisdiction.The sixth chapter:The construction of the system of decisions made beyond the plaintiff’s appeal. In this chapter, the author mainly anaylysize the position and system construction of administrative"appeal-decision"relationship in the Administrative Litigation Law.The administrative"appeal-decision"relationship is the unit of consistence and non-consistence. The consistence of administrative"appeal-decision"relationship significance is providing a basic axis for us to build the type of administrative litigation.Revocation, confirmation and payment, such three basic types of procedural appeal should be constructed in China’s administrative proceedings system. The non-consistence of the administrative"appeal-decision"relationship, which violates the foundamental principle of the Administrative Litigation Law, must be restricted. Therefore, the author mainly analyzes the other scholars’view as to theses decisions made by the court beyond the plaintiffs appeal such as sustaining decision, redoing decision, confirming the validity of actions decision. Then he puts forward his own position with the debates above, as well as furthermore demonstrates conscientiously the theoretical basis and assumption applicable. These types of judgments, for which China’s Administrative Procedure Law provides, are compatible with the function of China’s Administrative Litigation maintaining objective legal order and inquisitorial system in the administrative proceedings, also in order to supervise the administrative institutions, to protect the public interest and personal interest, as well as to adapt to the needs of the practice of administrative adjudication. But because of violating the fundamental principle that decisions should be made in accordance with the claim of the plaintiff, these types of decisions must be perfected and restricted when applied into the practical cases. In this chapter, the author finally demonstrates the necessity establishing the correction decisions and its character as well as the applicable conditions, and also brings up his preliminary concept of the legislative frame of establishing correction decision.