Research On The Administrative Registration In Dual Aspects Of Public Law And Private Law

The article analyses the rule of the administrative registration based on the dual aspects of public law and private law, focusing on the difficulty and highlight, hoping to be an assistance to the law-making and practice as well. The article will be divided into four chapters to illustrate the legal system of administrative registration.Chapter I is about the fundamental discussion about the concept and the types of the administrative registration, trying to put forward to a structure of the administrative registration. The registration is used to make some notes at first, and becomes a tool of administration to govern the nation. The author believes that it shows the change of the nature and function of the administrative registration. Generally, the registration is made up of three types:the formative registration; the confirmative registration and the registration of factual behavior. But the registration of factual behavior is not this article’s topic; and the formative registration should be reformed into proving registration, which includes the confirmative registration as well. The law-making should follow the point above and makes three basic types of administrative registration:property registration, the right-of-status registration and the business registration.In Chapter II, the author will discuss the function and the nature of the administrative registration in detail. According to the experience of the foreign country, the administrative registration controlled by the administration is meant to provide the public credit for private relationship in the market. But in China, the administration is incompletely keeping withdraw from the market and the private right, along with the transformation from the planned economy to the market economy. In this context, Chinese administrative registration shows some diversification in its function, including the protection of security of the transaction, tax collection, supervision, publication and numerical statement, and so on. But the core function of administrative registration should be cognizance to be the public certification for private legal relationship in the context of the serving administration. In short, the administrative registration is independent quasi-administrative legal action.The author argues the censorship and effect of the administrative registration in ChapterⅢ. Unlike the formation censorship or the substantial censorship, the author thinks that China should take the third way, i.e. the necessity censorship, which means that the formation censorship with the particularly substantial censorship. The necessity censorship will be helpful for the protection of the private parties and the reliance, and for the improvement of the efficiency of the registration department, and it is good for the identification of the obligation when there are mistaken registrations. The effect of the administrative registration contains two aspects:for the public effect and the private effect, the former is made up of public force, determinative force and binding force; and the latter is made up of proving and credibility effect.At last in Chapter IV, the author discusses the mistaken administrative registration, concerning about the formation of the mistaken administrative registration, followed by the rule of self-correction, the compensation and judicature supervision. The formation of the mistaken administrative registration is divided into two types:one is the civil legal relationship containing flaws which are irrelevant to the register office; and the other is caused by register office for some reason. Most of the correction of the mistaken administrative registration relies on the rule of self-correction, such as civil procedure with object registration or correct registration. But the judicature supervision should take part in if the mistake is caused by the register office with wrongs, in order to improve the standard of the register office’s notice. It is necessary that the judicature supervision should be distinguished with the civil procedure, for its purpose is to clear the nature and the principle of liability of the compensation. So the judicature supervision should follow some standards with the cases tutoring the institution, and construct the reasonable system of the compensation suit for the victim in the mistaken administrative registration.