On Administrative Factual Act

This dissertation consists of the foreword, main text and conclusion. The main text has two chapters. The foreword briefly explains motives of writing and major issues to be discussed. The main text makes a probe into the following issues as the definition, classification, status, legal control of administrative factual act (AFA) and the establishment of remedy system to AFA The first chapter is about the general theory of AFA. Reviewing firstly the social and theoretical background of AFA, the author points out that AFA is developed with the changing of administrative function because the change of administrative function leads to the change of modes of administrative act. It is also point out that, as a theoretical concept, AFA is both a reflection of administrative relation in practice and a result of conflicting theories. The prevailing legal thoughts at that time made important contribution to the classification of administrative act. Scholars in continental countries mainly concern this issue. Then the definition of AFA is discussed. By listing and analyzing different research achievement about AFA from abroad and at home, the author summarizes four representative viewpoints for analysis. To make a scientific definition, the author examines the historical source of administrative legal act and administrative factual act, based on which the concept of AFA is concretely defined, three characteristics are discussed, related concepts are differentiated from AFA like administrative legal act, quasi-administrative act, administrative torts, etc. Finally, AFA is studied according to different standards and a few typical AFA are listed.The second chapter studies the establishment of practical institutions of AFA. At first, the author analyzes the legal status of AFA in Chinese legal system. It is concluded that AFA is regulated both by substantive law and procedural law. Hence, the value of AFA is discussed from the aspect of litigation. In the end, an elementary suggestion is put forward to set up legal control system and remedy system of AFA in substantive and procedural law. The conclusion restates the macro significance of studying AFA and emphasizes to maintain a whole and macroscopical viewpoint in studying.All in all, this dissertation follows the logic method of "question-analysis-solution". Starting from logic point of separating administrative act into administrative legal act and AFA, it studies the concept of AFA and relevant issues. The transforming of administrative function brings about changing of classification of administrative act. As a new act, AFA is distinguished from administrative legal act in basic content and characteristics. A basis can be used to separate AFA from administrative legal act, i.e., whether the result of act is oriented with expression of intention. The social reality requires regulating and controlling AFA. It is a need of complex relations in modern society for the government to intervene society widely, but such wide expansion of state power causes fear. People are in a dilemma. For this, legal system is turned for solutions. On one side, it is tolerated that the state own extensive power; on the other side, administrative act, including AFA, is regulated and limited by law to force the government to perform its duty actively, thus preventing abuse of administrative power. Administrative theory is a reflection of administrative practice. It is an elementary task to pay attention to and study the change of administrative act, one aim of which is to provide theoretical support to the construction of administrative legal system. This dissertation displays such an effort.