Legal Liability Of The Illegal Administrative Procedure

At present, our country lacks thorough discussion to the liability mechanism of the illegal administrative procedure in theoretically, lacks stipulation to the legal liability of the illegal administrative procedure in the legislation, causes it lacks the dynamics to investigate the legal liability of the illegal administrative procedure in the practice. The first part of this article is about the elementary theory of the legal liability of the illegal administrative procedure. The legal liability always relates to the illegal activity, administrative organ's illegal activity is the prerequisite to investigate its legal liability, if there is no illegal activity there is no legal liability. Therefore, the prerequisite to investigate the legal liability of the illegal administrative procedure is administrative organ's administrative action violates the legal procedure, namely illegal administrative procedure. To definite the illegally administrative procedure, we must be clear about its concept, subject and recognized. The second part inspected the main overseas national related stipulation of the legal liability of the illegal administrative procedure. The various countries and the area, specially the more developed country in administrative procedural law have established the more perfect legal liability mechanism of the illegal administrative procedure, the establishment of these legal liability mechanisms has the extremely vital role to investigate the illegal procedure activity effectively, avoids the occurrence of the illegal administrative procedure activity. Therefore, it is necessary to research and draw lessons from overseas for its legal liability mechanism of the illegal administrative procedure. The overseas legal liability mechanism of the illegal administrative procedure establishment, displays the enormous flexibility, manifests specifically in two aspects: 1.Legal consequence multiplicity; 2.Differentiates the different procedure to undertake the different legal consequence. The third part has carried on the analysis to stipulation our country's legal liability of the illegal administrative procedure. Our country has the very big flaw on the illegal administrative procedure recognized, not only has not formulated a unified administrative procedure statute book, but also lacks many special administrative procedural laws until now. At present only " Public Security Management Punishment Rule", "Administration Procedural Law", " Administration Punishment Law", " Administration Reconsidered Law" , " Administrative License Law" and several laws has made the special stipulation to the administrative procedure. But to the administrative investigation procedure, the administrative contract procedure, the administrative public procedure, the administration precautionary measure procedure and so on all lacks the corresponding legal rules, like this causes our country's procedural law extremely few, correspondingly lacks the basis to recognize illegal administrative procedure, makes it more difficult to investigate the legal liability of the illegal administrative procedure. The worth noting is: The stipulation of " Administration Procedural Law (draft)" which is composed by the Beijing University public law research center administration law enforcement and administrative procedure group about the legal liability of the illegal administrative procedure. About invalid and cancellation, our country does not have the explicit discrimination, draft has carried on the explicit discrimination to the two conditions and the legal consequence, this is a big leap without doubt. The fourth part is about how to perfect the theory and the practice. In the theory perfect aspect, the author has conducted the research to the concept and the constitution of the legal liability of the illegal administrative procedure, and proposed to consummate the responsibilityform of the legal liability of the illegal administrative procedure. 1st, the legal liability of the illegal administrative procedure refers to the...