Judicial Review Of Invalid Administrative Actions

The new Administrative Litigation Law implemented in 2015 has officially established the judicial review system for invalid administrative acts in China by adding the invalidation judgment clause added in Article 75.However,as a new system,there are still many questions to be answered in how to understand the norms and how to use them in judicial practice.In this regard,it must be carried out from two levels,one is the theoretical proof of the system,and the other is the specific implementation of the system.Although the two are different research orientations,they all need to be returned to the text of the Administrative Litigation Law to understand,so that a scientific and reasonable judicial review system suitable for China's invalid administrative behavior can be established.On the theoretical level,it is necessary to deal with invalid administrative actions and presumptive force,invalid administrative actions and citizen's resistance rights,as well as confirm the relationship between confirming invalid judgments and revocation judgments.As far as the theory of presumptive force is concerned,invalid administrative actions are not publicly determined,even if the public power has shifted from substantive to procedural.Confirming invalid judgment is only a de facto declaration of invalidity of administrative action,not a decision on the effectiveness of the act.Meanwhile,in addition to the theory of effectiveness of civil law,the understanding of the invalidity of administrative actions can also be interpreted from the perspective of the theory of effectiveness of judicial judgment.As far as the right to resist is concerned,it should be recognized that citizens have the right to resist the invalid administrative act.The risk of its exercise should not be a factor in negating invalid administrative actions,and there is no absolute correspondence between the two.And the most important function of confirming invalid judgment is to provide a means of defusing the risk of exercising citizen resistance.As for the status of the procedural law,confirming invalid judgment is highly independent compared to revocation judgment.Japan's practice of recognizing invalid lawsuits as a supplement to the lawsuit for revocation is only a special consideration in the policy of the law.It does not have universal significance and should not be an obstacle to restricting the application of the confirming invalid judgment clause in China.However,the above theoretical interpretation is far from enough.The life of law lies in the implementation.As a new system,the key point of confirming invalid judgment playing its due litigation function is to implement.In this regard,it needs to be studied around its judicial application.The first is the litigation technical of judicial review of invalid administrative actions.At present,litigation technical issues are mainly concentrated in the following four aspects: the first is the prosecution period of confirming invalid lawsuit.As far as legal norms are concerned,there is a legal loophole in the period of prosecution for confirming invalid lawsuit.The Supreme People's Court has adopted different methods of filling the hole by applying and not applying the legal terms of the time limit for prosecution.In addition,it has created a “appropriate deadline” standard.In any case,from the perspective of the theory of invalid administrative actions,the confirming invalid lawsuit should not be limited by the time limit for prosecution.The second is the "sue interest" of confirming invalid lawsuit.In terms of the "sue interest",since the purpose of confirming invalid lawsuit is only a simple factual declaration and does not involve rights content,it is very different from revoking litigation,compulsory litigation,etc.This difference is mainly reflected in the content and timeliness of the “sue interest”.In terms of content,it is sufficient to confirm the “confirming interest” of the invalid lawsuit as long as it meets the “legitimate interest”,and do not impose excessive restrictions on it.But it is need to be limited to legal protection or should be protected.In terms of time,“confirming benefits” needs to be “immediate”.It means the judgment of the court can still immediately relieve the plaintiff's rights on the time element,otherwise there is no need for time.The third is the allocation of burden of proof for to confirming invalid lawsuit.Like other lawsuits,confirming invalid lawsuit also requires compliance with the legislative provisions of "inversion of burden of proof".And the difference lies only in the “initial burden of proof” that the plaintiff should bear.The difference of initial burden of proof is still reflected in the " sue interest ".The fourth,based on the legislative tendency of administrative litigation and the purpose of Administrative Litigation Law,the conversion relationship between confirming invalid lawsuit and revoking lawsuit also needs to follow the principle of " unanimity of lawsuit and judgment".the content of confirming invalid judgment clause is also the embodiment of the principle of “unanimity of lawsuit and judgment”.Just in the specific conversion system,“Interpretation of the Supreme People's Court on the Application of the Administrative Procedure Law of the People's Republic of China” prescribes the content that when the plaintiff conducts revoking lawsuit against invalid administrative actions,the court may directly make confirming invalid judgment has the suspicion of breaking the principle of “unanimity of lawsuit and judgment” and is contrary to procedural justice.Litigation technology is only a solution to the litigation process.The focus of judicial review of invalid administrative actions is to determine what administrative actions are invalid.From the point of view of the normative content,the confirming invalid judgment clause follows the evaluation structure of administrative actions of “significant and obvious violation of the law–invalid”.Although the new Administrative Litigation Law has broadened the extension of "administrative action",it does not mean that all administrative actions can be applied to confirm invalid judgments.Because some administrative actions cannot be evaluated for legality or effectiveness.This leads to the effect of the exclusion of “unable to correspond” and “unable to evaluate”.For example,administrative facts and administrative inaction,can only be used for legality evaluation,but not for effectiveness evaluation.The invalid standard of “significant and obvious violations” contain the dual elements of “significance” and “obviousness” of illegality."Significance" is the essence of serious violation of law,and it is the root of the invalidity of administrative actions.The "obviousness" is to highlight the specialization of serious illegal judgments,reduce the difficulty of judgment,and provide space for citizens to correctly exercise their right to resist.Even so,the criteria for “significant and obvious violations of the law” are still limited.It requires the complement of the "impossible theory" and the correction of the "obvious supplemental theory".In the specific case of invalid administrative actions,the Administrative Litigation Law and the “Interpretation of the Supreme People's Court on the Application of the Administrative Procedure Law of the People's Republic of China” clearly stipulate the three situations of the subject of administrative action does not have the qualification of administrative subject,there is no basis for administrative actions(There is no legal basis for administrative actions that derogate from rights or increase obligations),and the content of administrative actions is objectively impossible to implement.In addition,In addition,it is necessary to draw on the jurisdictional deficiencies,the procedural flaws,the administrative actions that undermine public order and good customs,and the ineffectiveness of administrative actions in the extraterritorial legislation,so as to provide guidance for subsequent judicial practice.The final point of judicial review of invalid administrative actions shall be the confirming invalid judgment.However,in judicial practice,many situations are not ok to confirm invalid judgments,which is especially reflected in the following four aspects.The first is the time division of the judicial application of confirming invalid judgment.For the invalid administrative actions that occurred before the implementation of new Administrative Litigation Law,the “Interpretation of the Supreme People's Court on the Application of the Administrative Procedure Law of the People's Republic of China” stipulates that no case shall be filed.From the normative order of the norm and the substance of the principle of “non-retroactivity of law and exception retroactivity”,There is a great legitimacy defect in this approach.Secondly,there should be partial invalidity in administrative actions,which is the embodiment and requirement of the principle of the stability of law.The premise of this determination is that the administrative action itself is separable,which needs to be considered in specific cases.Thirdly,when invalid administrative actions become the pre-requisite in litigation,the academic and practical circles generally believe that the court has the right to directly to make an determination of invalidation.But there are also two aspects of martyrdom.First,this deprives the defendant of the defendant's right of rebuttal.Second,it is necessary to conduct a detailed demonstration of the scope of the validity of the invalidation of the part of the reason statement and not in the main body of the judgment.Fourth,since the confirming invalid judgment is only a de facto declaration,It is incomplete in the plaintiff's right remedy,and it is necessary for the court to make remedial judgments and compensation judgments.It should be noted that the remediation judgment and the compensation judgment have a sequential relationship in the application.For the remedy judgment,the judge should take the initiative,and for the compensation judgment,the judge has the discretion.In addition,when the judges make two kinds of judgments,they should also make it clear as much as possible in order to realize the effectiveness of defending the plaintiff's rights.