Two Dimentional Mode Of The Right Of Administrative Action

What is the methodology that the jurisprudence of administrative procedure should adoptto prompt the reformation of the system of administrative litigation? It is the basic issue thatthe research on the right of administrative action must response. The development of thesystem of administrative litigation in China now encounters institutional bottlenecks, intowhich considerable effort have been put by many theories.But these theories seem to belimited by a short thinking that from social problems to institutional change, which appear asa simplified thinking of legislative doctrine, and as a result the reformation of the system ofadministrative litigation has achieved none substantive breakthrough. Although mostly itshould be attributed to many factors such as constitutionalism, society and so on, thejurisprudence of administrative procedure still should make a reflection. The past researchparadigm of the civil procedural law and criminal procedural law emphasized too much on thelegislation doctrine and concentrated the pure institutional research,however ignored theinterpretation doctrine. Recently, the researchers in these two departments of law have begunto face up to and reflect on the problems above. As a consequence the civil procedural lawand criminal procedural law have got superior development. It provides a revelation tojurisprudence of administrative procedure that the interpretation doctrine should be developedas much as the legislation doctrine. It is the theory of the right of administrative action thatcould impulse the innovation of the methodology of the jurisprudence of administrativeprocedure. As one of the basic theories of the jurisprudence of administrative procedure, thetheory of the right of administrative action correlates directly with many basic problems ofadministrative procedure, and is a tool by which the jurisprudence of administrative procedurewould be refined and the institutional research would be systematic.Firstly, the right of action is a concept of private law, which is a result from thedevelopment of the civil action. The origin of the theory on the right of action connects withthe relation between the substantive law and the procedural law which concerns the questionsthat why can people take legal actions and the basis of action is the substantive law orprocedural law. The contrary answers to these questions produced the private law theory ofthe right of action and the abstract theory of the right of action, which respectively regard theright of action as a private right and a public right. Afterwards, the specific theory of right of action, the theory that the claim to judgment for the case and the judicial action’s appeal havefurther perfected the theory of right of action in its public law nature, the former two havesystematized the constitutive requirements of appeal right. Those developments are only inthe field of procedural law.After the Second World War, the theory of right of action constitutionalized with thestrengthening of the demands of protecting civil rights, which began to jump out of the pureprocedural law field and obtained contact with the constitution. As a result, the right of actionalso was understood as a kind of basic rights in nature. The great development of theadministrative litigation is under the background of the trend of constitution litigation, that is,administrative litigation is infiltrating in constitutional philosophy, and characterized with thebranding of the basic rights. All these endow the right of administrative action somedifferences compared with civil appeal right, and then endow the interpretation and legislationof the right of administrative action specificity.How should we construct the right of administrative action and what are its problems?The main problems can be attributed to lack of precision of the right of administrative actiontheory due to the underdevelopment of interpretation doctrine which overall leads to the lackof systematic thinking when refers to the right of administrative action theory and evenjurisprudence of administrative procedure. This unsystematic thinking shows in the followingaspects: the internal lack of systematic thinking in jurisprudence of administrative procedure,the insufficient systematic correlation between administrative procedure law andadministrative substantive law, between administrative procedure law and civil procedure law,between administrative procedure law and constitutional law, and the miscommunicationbetween administrative procedure law theory and litigation practice.To solve the above problems, one of the best strategies is using the comparative method.Japan and Chinese Taiwan area are the two objects. The development of the Japanese right ofadministrative action is the product of the cooperation of constitutional interpretation,administrative interpretation, the judicial practice and legislative practice, which constitutethe complex and rigorous development mechanism of the right of administrative action. InTaiwan, administrative litigation system has substantially developed just recently, theaccumulation is not well done, and the interpretation both in theoretical and practical circlesof public law is that little, the right of administrative action is mainly promoted by theinfluence of constitutional interpretation by justices on theories, judicial practice and the legislation practice. In short, the development of the right of administrative action in Japanand Taiwan showed a trait--the precision legislation through interpretation, and furtherpromote the development of the right of administrative action. The ultimate motivation ofinterpretation lies in constitutional interpretation. Therefore, the interpretation of the right ofadministrative action should be unfolded on two levels--constitutional law and administrativelaw.The constitutional interpretation of the right of administrative action is based on attributeof the right of administrative action which as one of basic rights. As a basic right, its actualeffect and safeguard is done by the function system of basic rights, which includes subjectiveand objective aspect, the former contains the right of defense and of benefit, and the lattermainly includes special state protection obligations, organization and procedure safeguard andinstitutional safeguard. However, the function of the basic rights does not work spontaneouslyand automatically, but depends on constitutional review. In the constitutional safeguardmechanism composed of function system of basic rights and constitutional review, the right ofadministrative action will have a binding to legislative authority, administrative authority andjudicial authority, especially the freedom of formation system of legislative authority will besubject to close scrutiny of constitutional safeguard of the right of administrative action, thosethree authorities will undertake corresponding obligations to the right of administrative action.By the function system of the right of administrative action and the obligations authoritiesundertaken, we can outline the constitutional connotation of the right of administrative actionas a basic right: the right to be on trial by independent courts, the right to appeal to the court,the right to be on trial fair and effectively. Constitutional interpretation of the right ofadministrative action has given birth to a full range of the right of administrative action,which has blended in a lot of factors besides the composition of appeal right itself, and thosefactors are extremely developmental, which is closely related with the dynamic andexpansionary of basic rights. Therefore, the constitutional level of the right of administrativeaction shows obviously a temperament of expansion, which aims to abstract and pragmatic (orgood) administrative litigation system.The constitutional interpretation of the right of administrative action must be combinedwith the administrative law interpretation, to avoid the risk of generalization. Compared withthe expansion of the right of administrative action on constitutional interpretation, onadministrative level it is characterized by two qualities: objectivity and limitation. Indeed, this relative limitation has certain expansion in the level of administrative litigation.Administrative interpretation of the right of administrative action is to shape a right to initiatea legal proceeding under the item of the right to resort to court. This right is through threesteps, in turn, to be shaped: setting the function of administrative litigation, qualified parties(the plaintiff), objective (narrow sense) interest of litigation. Setting the function ofadministrative litigation directly decides the type and function area of the right ofadministrative action. Qualified parties mainly inspects whether the plaintiff has subjectivepublic right and whether it is violated. The judge of subjective public right not only dependson the application of Schutznormtheorie, but also is influenced directly by the constitutionalbasic rights and the protection of basic rights. Interest of litigation in narrow sense furtherinspects the claim of the plaintiff whether is necessary or not to be protected on the basis ofthe above screening. These three steps provide the screening tool rather than define standards,thus the applicability of the right of administrative action has the greatly adaptation andexplain ability to retain vitality in the constantly changing social through always changingscreening standard. The right to initiate a legal proceeding shaped by administrativeinterpretation is different from the full range of the right of administrative action shaped byconstitutional interpretation, the the right of administrative action on administrative levelfocuses only on the structure of the right of administrative action itself, ignoring safeguardfactors. That is to say, administrative interpretation grasps the lawsuit entrance through thereal set of component elements of litigation, whose function is bringing the litigation into theinquisition stage.The development of the interpretation doctrine on the right of administrative action is torefine the legislation doctrine and contribute to the development of legal system. The firstcontent of the legislation doctrine is to realize the general regulation of the right ofadministrative action (namely the scope of accepting cases discussed in China). Such generalregulation may be similar to the past simple legislation doctrine in external form, but it issignificant different to them in internal contents. The difference is that the former is supportedby the important constructive conditions of the right of administrative action and theinterpretation doctrine of administrative action types. Such supports will make such refinedlegislation doctrine have considerable advantages in static content design and dynamic systemoperation. Nowadays, the Administrative Procedure Law of the People’s Republic of China isunder modification, as the fruits of researching the right of administrative action, it is necessary to pay attention to the amendment (draft) and examine it by using the interpretationdoctrine of the right of administrative action and legislation doctrine so that we may havebetter understanding from the perspective of new methodology.In conclusion, the research on the right of administrative action relocates the relationbetween the legislation doctrine and the interpretation doctrine, and it aims to change thetendency of which the former is stressed in an excessive manner but the later is neglected inthe researches on administrative procedure law and to promote the reformation of itsmethodology. The answer to such a question “how to realize the innovation of theadministrative procedure system” is to turn from the stress on the legislation doctrine to thecommon stress on both the legislation doctrine and the interpretation doctrine, so that tosupport and prompt the legislation doctrine refined by the interpretation doctrine, andinnovate the system finally.