Consideration And Reconstruction On The Principle Of Stopping Executing Agency Action In Administrative Law

The principle of stopping or not stopping executing agency action in Administrative Law particularly exists in the administrative redress system. It is stipulated in many countries and regions' law systems. Generally, there are two categories of the principle. One is stopping executing agency action, which is typically presented in the Germany law; the other is not stopping executing agency action, which are enforced by Japan and other countries. The latter is the mainstream in legislation. In China, the Administrative Appeal Law and the Administrative Litigation Law have established the principle of not stopping executing agency action during the period of appeal or litigation. However, from the perspective of theory study and administrative practices, there is too much inconsistency in explaining the principle and its relationship with administrative mandatory execution as a result of its simple stipulation in lawmaking. The paper, proceeding with analyzing connotation and extension of the principle in Chinese Administrative Law, and studying the concerned law systems abroad, maintains that which one is the main principle between stopping and not stopping executing agency action is determined by lawmakers. It belongs to a kind of means for rights protection in nature. Based on the present problems in practicing and studying the principle, the paper proposes that the lawmakers of China should amend the principle. Although the emphasis of amending should not put in deciding which one is the main principle, there still need a general principle for practicing. That is stopping executing agency action during the period of appeal and litigation. But what the new principle stresses is the procedure of deciding stopping executing agency action, which aims at finding a balance point between public interests, private interests and other people's interests.