On The Conditional Administrative Action

This paper focuses on the theory and practice of conditional administrative action in response to the need of administration in accordance with law in China. On the basis of critical analysis of the relevant theory and practice abroad, this paper explores five issues-the concept, nature and significance of conditional administrative action, the classification and the categories, the limitation of conditional administrative action, the validity of conditional administrative action and the legal remedy of conditional administrative action.As to the concept, nature and significance of conditional administrative action, the paper exemplifies that the concept of conditional administrative action is defined subjectively, at the same time it has objectivity in view of history, practice and development. Therefore, the scholars in different countries and areas in different periods have different perspectives and definitions of conditional administrative action. In consideration of Chinese legal culture, the issues in the standardization of conditional administrative action, the tasks and objectives at present stage in the development of rule of law in China, this paper defines the conditional administrative action as limiting validity and effect of administrative action. It further discloses the nature of conditional administrative action by clarifying the relationships between conditional administrative action and a couple of categories in administrative law such as discretional and binding administrative action, beneficial and binding administrative action, primary and subordinate administrative action. The paper then states the function and significance of conditional administrative action.As to the classification and the categories of conditional administrative action, the study on the classification helps to clarify various forms and characteristics of conditional administrative action, and to better understand correlations among different categories of conditional administrative action. Having analyzed the significance and methodology of the research on classification of conditional administrative action, this paper introduces and explains the categories of conditional administrative action in different perspectives. The generally accepted categories are introduced in the first place such as conditions in binding administrative action, conditions of time limitation, term and binding, conditions of reserved annulment right. The paper then discusses such issues in dispute in the classification of conditional administrative action as whether partial exception of legal effect and amended permit are conditional administrative action, reserved binding and postpositive binding.As to legality and legalization of conditional administrative action, the limitation and how to make limitation is the research subject of legality and legalization of conditional administrative action. For the purpose of administration in accordance with law, the primary limitation on conditional administrative action is the limitation on legality. This paper explores mainly the theories concerning relationships between legality and administration in accordance with law, legality and rationality, legal and illegality. The paper then elaborates the requirements of legalization of conditional administrative action in accordance with rules such as legal procedure and delegated authority. It also discusses the significance of the principle of irrational connection forbidden to legalization of conditional administrative action. The paper finally expounds the requirements of legalization of conditional administrative action in accordance with law such as principle of proportionality, legitimate purpose and relevant considerations.As to the validity of conditional administrative action, it involves issues of taking effect, validity, invalidity and termination of validity. Firstly, this paper discusses the conditions and the content of taking effect, and the trust protection. Then it makes clear issues concerning validity and legality, validity and invalidity, and partial invalidity. Finally this paper discusses revocation and annulment of conditional administrative action.As to the remedy of conditional administrative action, there are formal and informal remedies. This paper indicates the significance of two formal remedies, i.e. administrative review and administrative litigation. As a judicial remedy, the administrative litigation plays an important role in remedy system. The major issues in judicial remedy for conditional administrative action concern the revocable conditions in beneficial administrative action, and annulment of conditional administrative action. Having introduced the relevant theory and practice of judicial remedy for conditional administrative action abroad, this paper describes the legal remedy for conditional administrative act in China and makes proposals for the improvement of the system.