Confirmation Of Illegal Judgment In Administrative Proceedings

This study is mainly concerned with confirmation of illegal decision in administrative proceedings. At present, in our country, there is not a unified theory, a perfect system in litigation to confirm illegal decision. Moreover, there exists a huge difference in practice. Therefore, its role and value are far from displayed.At first, it is unclear to identify illegal decision. Traditionally, it is believed that the confirmation of illegal decision belongs to confirming judgment, which is ranked with abrogation of judgment amendment of judgment. However, in a specific comparatively research, confirmation of illegal decision is often separated from confirming judgment, and sometimes a comparison is made indiscriminately between confirming judgment and other judgments, which leads to a confusion in both theory and logic. Secondly, there is a misunderstanding for confirming illegal judgment. Especially a confusion has been made between the provisions of"Judicial interpretation of Article 58" and other stipulations about illegal judgment. Such phenomenon is not only a problem existing in legislation. On a deeper level, it is resulted from a lack of understanding of the confirmation of illegal judgment confirm the law of the complaint. Finally, there is a misunderstanding of applicable conditions of confirming illegal judgment. The stipulations in judicial interpretation still have not been formulated and there is not inner logic. In addition, a reasonable judgment system centering around the requests of complaints has not been formed.How to solve the above problems? By studying the stipulation on confirming illegal judgment abroad, the author finds that in England, there only exists a a declaration of the significant judgments-declared that,. Such phenomenon also exists in America's" confirming judgment". However, from the perspective of litigation types, some countries with Continental Legal System such as German, Japan, France with and Taiwan Region affected by Continental Legal System confirm the judgment. Such as France's "the meaning of interpretation and review of administrative decisions and the complaint of legitimacy", Germany's" confirm the recognition of administrative acts that continue to recognize the illegal nature of the complaint that no longer produce legal effects", Japan's "the complaint which is not a recognized violation Complaint", Taiwan of China's "the complaint which is confirmed "。Especially, the one which is typical and reprehensive is Japan's "complaint that is not a recognized violation complaint", the position in the ruling system,this further limits violation complaints, aiming at the request of complaints in a greater degree.. Circumstantial Judgment, originated in Japan, was introduced in "the Judicial interpretation of Article 58",Obviously it needs improvement.On the basis of analysis and comparison, the author mainly deals with the following question:1) Confirm location problem in illegal judgment, which includes the position in value; Namely affirming that illegal sentence in the ruling system of law, the confirmation of the decision which is based on law, should have its own independent position. And that can not be termed as confirming judgment in general.2) Confirm the types of illegal judgment. The author divides it into The based confirm:illegal judgment Normal confirm illegal judgment and Special confirm illegal judgment; 3) based on the division, the author makes a study on applicable conditions and put forward layering of applicable, namely, The based confirm illegal judgment,Normal confirm illegal judgment and Special confirm illegal judgment,corresponding to the elements of a simple application, strict application of the elements and the strictest application of respectively.From the above analysis, the author considers that a good system can not be established without perfecting the relevant systems. Therefore, at the point of improving the confirming illegal judgment, the author put forward some advice how to perfect the corresponding system. For example, create the objective action,system of temporary protection of rights,preventive decision and so on,Owing to the limitation of time,energy and abilities, some drawbacks are unavoidable during the process of perfecting the confirming illegal judgment. what is more, a new theory becomes mature during the process of improvement. If this study can offer some help for subsequent researchers, it achieves the author's attentions.