Study On The Administrative Files Exclusivity Rule

Administrative files exclusivity rule means that administrative actions of administrative organs should be based on the administrative files rather than those evidences or files that are not proven and not known by the administrative counterpart. Under the principles of administration according to law and administrative due process, administrative files exclusivity rule is regarded as one of the fundamental rules of administrative procedure. It aims to make sure that the exercise of executive power is fair, open and rational, in order to protect the legitimate rights and interests of the administrative counterpart.Internationally, both the common law and civil law systems have adopted administrative files exclusivity rule and based administrative actions on administrative files. Even though two systems possess different legal traditions and stipulate differently about administrative files exclusiveness rule, the development of the rule in these two systems gradually merge with each other, showing more and more in common, and their understandings about many aspects of the rule, like the effect of administrative files, gradually become the same. That is because countries of civil law system paid more and more attention to administrative procedure after the Second World War.In China, some existing laws, regulations and judicial interpretations, such as Administrative Penalty Law, Administrative License Law, The Supreme Court’s Provisions of Law Application in hearing administrative cases of anti-dumping, The Supreme Court’s Provisions of Law Application in hearing administrative cases of countervailing, have gradually included administrative files exclusivity rule, reflecting a more clear and explicit understanding of administrative files exclusivity rule by our legislators. As for law enforcement, with the progress achieved in legal construction, the importance of due process have been gradually recognized and accepted by law executors, which establishes the basis for the implementation of administrative files exclusivity rule. In judicial review, Administrative Procedure Law and the supreme courts’related interpretations provide the legitimacy of using administrative files exclusivity rule when courts review administrative actions, and those judgments demonstrate the practical significance of administrative files exclusivity rule. In China, the stipulations of administrative files exclusivity rule are still scattered and incomplete, and even contradictory, which causes obstacles in law enforcement and judicial review. Therefore, it is necessary and urgent to study administrative files exclusivity rule in depth, so as to put forward legislative proposals and to provide ideas for law enforcement and judicial review.This paper is written in the following order:from basic concepts and theories to specific issues, from legislation to law enforcement and judicial review, from problems to solutions. The research on administrative files exclusivity rule starts from the definition and analysis of some basic concepts, like’administrative files’and’administrative files exclusivity rule’, and then tries to find out the relationship between administrative files exclusivity rules and relevant administrative systems and stipulations; clarifies the establishment and expression of administrative files exclusivity rule in countries of common law system and civil law system respectively; elaborates the requirements and exceptions of administrative files exclusivity rule in administrative procedure, administrative review and administrative litigation. By analyzing the circumstances of legislation, law enforcement and judicial review in China, the paper sums up problems existed in stipulations of administrative files exclusivity rule and puts forward proposals to improve them. Finally, the application of administrative files exclusivity rule in several important types of administrative actions, such as administrative licensing, administrative penalty, administrative adjudication, administrative requisition and administrative enforcement, is discussed in detail. The discussion also includes how the rule is applied in the judicial review of the foregoing administrative actions.This paper is divided into four chapters. The first chapter is Administrative Files and Administrative Files Exclusivity Rule, researching on the definition, features, content and forms of administrative files, and the definition, theory, value, status and historical development of administrative files exclusivity rule, and the relationship between the rule and other relevant rules and systems. Also, this chapter compares the rule with other foreign legislations and demonstrates how the rule can be improved by adopting ideas from other countries. Apart from summarizing the existing theories, this section thoroughly discusses theoretical issues related to administrative files. Most importantly, this article distinguishes administrative files and hearing records, clarifying that the correct basis of administrative decision is administrative files rather than hearing records. Besides, this section studies the relationship between administrative files exclusivity rule and other related rules and systems, including illegal evidence exclusion rule, rule of corroboration, doctrine of discretional evaluation of evidence, the system of court obtaining evidence on its own initiative, and limitation of time of producing evidence. This point has not yet been discussed by other articles.The second chapter is General Principle of Administrative Files Exclusivity Rule, mainly probing into the requirements of administrative files exclusivity rule in administrative procedure and administrative remedy, and the exceptions of administrative files exclusivity rule. This chapter deeply discusses the application of administrative files exclusivity rule in administrative procedure and administrative remedy in combination with the cases and data that the author achieved from his working experiences in High People’s Court of Guangdong Province. Besides, this chapter discusses in-depth the exceptions of administrative files exclusivity rule.The third chapter is The Status Quo Analysis and Legislative Proposals of Administrative File Exclusiveness Rule, mainly discussing the existing stipulations of administrative files exclusivity rule in our country, the problem existed in legislation and law application, and possible ways to improve the stipulations of administration files exclusivity rule. First, this chapter thoroughly summarizes the problems existed in legislation and law application of administrative files exclusivity rule, and systematically analyses the feasibility of establishing a comprehensive system of administrative files exclusivity rule. Second, this chapter discusses how to improve administrative files exclusivity rule in our country, and proposes that our legislative concept should shift from instrumental orientation to counterbalance, and our legislative method should shift from scattered rules to systematical regulations system. When it turns to administrative procedure, the author advises that we should ensure a due process by transforming internal files to public files.The fourth chapter is The Application of Administrative File Exclusivity Rule, probing into the application of administrative files exclusivity rule in legal practice, especially in several important types of administrative actions, such as administrative licensing, administrative penalty, administrative adjudication, administrative requisition and administrative enforcement. This chapter embodies many cases of legal practice that took place in recent years. At present, such kind of articles that combine recent cases with the analysis of administrative files exclusivity rule are rarely seen.Finally, based on the foregoing research, the author proposes several stipulations in order to effectively realize administrative files exclusivity rule in administrative procedure law.