Research On Administrative Prescription System

Administrative prescription system is a kind of time-based legal system that not only protects the right(power)person,but also urges the right(force)person to exercise his or her right(force)within a certain period of time.Its fundamental purpose is to give legal recognition and protection to the de facto rights and obligations that have gone through a long time,so as to respect the existing public law order,maintain social stability,and avoid factors It is difficult to provide evidence in the litigation over the years.With the development of market economy and administrative state,the administrative legal relationship is not only more complex,but also more changeable,which also causes more administrative disputes.As a time-based legal system committed to the stability of public law order,the administrative prescription system is of great significance to improve the administrative efficiency,realize the stability value of law,reduce the court litigation burden,and enhance the public interest.Based on this consideration,most of the developed countries or regions in the civil law system have established a complete administrative prescription system.The administrative prescription system is also applicable in the field of administrative law in China,but there are some deficiencies in the definition of concepts,the shaping of values,the differentiation of types,and the systematic construction.It is not only difficult to guide the practice effectively,but also difficult to give full play to the function and value of the administrative prescription system.This paper takes the administrative prescription system as the topic,comprehensively uses the interdisciplinary analysis,comparative analysis,value analysis and other research methods,trying to reshape the concept of administrative prescription,explore its legal logic,system function and value orientation,and put forward scientific typological methods.On this basis,it carries out a classified study on the administrative prescription system,and specifically investigates the application scope of the administrative prescription system Finally,combined with the legislation at home and abroad,this paper puts forward corresponding suggestions on the standard design of the administrative prescription system in China,so as to realize the systematic construction of the administrative prescription system in China.The reason why "prescription" is called "prescription" does not lie in the type of rights applicable to prescription,nor does it lie in whether the prescription can be suspended or interrupted,but lies in its "legal confirmation and protection of the existing rights and obligations through the acquisition or elimination of rights,so as to realize the stability value of law".The definition of administrative prescription should also implement this core element.However,based on the uniqueness of the legal field,the applicable object of administrative prescription includes not only the rights of the subject of administrative law,but also the power of the subject of administrative law.There is no space for the application of the prescription system in the field of administrative law,and the legal consequences after the limitation period are completely manifested as the complete elimination of rights or powers ? Therefore,administrative prescription refers to the time limit system in which the subject of administrative law fails to exercise its rights(powers)within the statutory time limit,and then loses the corresponding rights(powers)after the time limit,so as to maintain the existing public law order.The system of administrative prescription embodies the movement of material,the relativity of justice,the stability of law and the protection of trust interests in legal theory.It shows the priority of order value in values.It not only has the general function of prescription system in other legal areas,but also has the unique function of improving administrative efficiency,limiting administrative power,eliminating contradictions between officials and people,and promoting public interests.The administrative prescription system should be divided into administrative limitation system of restricting rights and administrative prescription system of restricting power according to whether it is the right or power of the subject of administrative law,forming a new dualistic pattern: the former includes prescription of claim right and prescription of formation right in administrative law,and the latter includes prescription of disposition power and execution power in administrative law.The prescription of right extinction in administrative law includes the prescription of claim right and the prescription of right of formation.The applicable object of limitation of claim in administrative law is limited to the subject of administrative law's claim for property payment,and the limitation period is calculated from the time when the claim right is exercisable;for the claim for the purpose of omission,it is calculated by itself.The suspension and interruption of prescription of claim can refer to the relevant provisions of civil law on extinctive prescription.The special thing is that the right of claim can be interrupted by the administrative sanction made by the administrative organ to realize the specific claim right.The time limit for the execution of the request and ruling of the civil law shall still be applicable to the time limit for the execution of the judgment.The prescription of formation right in administrative law includes the limitation of administrative litigation(cancellation lawsuit),the prescription of administrative reconsideration(Cancellation Application)and the prescription of cancellation right and rescission right in administrative contract.The way to realize the right of formation includes not only the service of notice,but also the action of revocation by the obligee.The purpose of the administrative counterpart to file a suit of revocation is to deny the legal order created by the prior administrative act.In essence,it exercises a right of revocation(the right to form a suit),so it can be called the prescription of the right of formation.The proof of the prescription of the right of formation in administrative reconsideration also bears this legal principle.The prescription of the above two kinds of formation rights shall be calculated from the time when the administrative sanction is served.In principle,the prescription shall not be suspended or interrupted.The proof of prescription of formation right in administrative contract is similar to that in civil contract,but the prescribed time limit for exercising the right of rescission should not be called prescription because it does not reflect the confirmation and guarantee of specific order by law.It is still controversial whether the right of cancellation exists in the administrative contract,but the countries or regions that hold a positive attitude mostly impose the limitation system on the administrative organ's right to cancel the contract,and from the time when the administrative organ knows or should know the reason for the cancellation,the situation of suspension or interruption can not occur in principle.Based on the consideration of public interest,the administrative organ is in an advantageous position in the relationship of administrative contract,and its right of rescission is not subject to the limitation system in principle.Therefore,in principle,the administrative counterpart's right of rescission and rescission of contract should be exercised by filing a lawsuit to the court,and comply with the provisions of limitation of action.The prescription of power extinction in administrative law includes the prescription of disposition power and the prescription of executive power.Based on the principle of administration according to law and the consideration of promoting public interests,not any disposition power of administrative organs can be subject to extinctive prescription.Only the power of sanction,revocation of illegal act and abolishment of lawful beneficial act should be subject to extinctive prescription.As for the sanction type disposition right,the limitation period shall be calculated from the day when the illegal act ends,but the result of the act occurs in the latter,and the limitation period may be suspended for legal reasons,but in principle,the limitation period shall not be applied.The limitation period should be calculated from the time when the power holder knows or should know the reason for revocation.Since the exercise of the right of revocation does not need the cooperation of the counterpart and is hard to be interfered by external factors,the prescription of the right should not be suspended or interrupted.In view of the protection of the interests of the opposite party,the limitation period shall be calculated from the time when the cause of invalidation occurs,and the limitation period shall not be suspended or interrupted for the same reason as the prescription for revoking the right of disposition.As for the prescription of executive power in administrative law,due to the different modes of execution,there are different expressions in the limitation period and the operation of prescription.Among them,the mode of self-reliance of administrative organs is not only consistent with the executive power of administrative sanctions,but also helps to reduce the pressure of the court.It is more appropriate in theory and practice,and should be the direction of the reform of administrative enforcement system in China.Under the mode of administrative organ's self enforcement,the time effect of executive power is calculated from the date of the expiration of the time limit for performance of obligations determined by administrative sanctions.However,in principle,the limitation of time limit of executive power can only be suspended due to legal reasons,but it should not be applied.The system of administrative prescription in our country is far from perfect.To change this situation,the first thing to do is to innovate those unsuitable rights concepts or legal systems.Therefore,in the context of this paper,the normative design of administrative prescription is based on the construction of claim right system,the implementation of administrative litigation types and the transformation of administrative execution mode.The normative design of administrative prescription system in China should carry out typological thinking,and choose appropriate legislative mode according to its specific characteristics: prescription of claim right in administrative law,prescription of disposition right of revocation of illegal act,prescription of disposition right of annulling lawful beneficial act and time effect of formation right(cancellation right and rescission right)in administrative contract shall be formulated in the future In the code of administrative procedure,the limitation of sanction type disposition power,the limitation of execution power,the limitation of administrative litigation(the action of revocation)and the limitation of administrative reconsideration application in administrative law should be respectively stipulated in the independent separate laws to form a unified and differentiated administrative prescription system.