On The Invalid Administrative Act

The theory of invalid administrative act is an important problem among the administrative act theories. It is a category having particular connotation. It occurs as a result of modern civil law infiltrating into the administrative law, and it is the rights that citizen are endued with to defend against the illegal actions of administrative organization. This paper studies the invalid administrative act, and illustrates it from four chapter. Chapter one is about the concept of invalid administrative act. In this part, the connotation of invalid administrative act is construed, distinguished from the illegal of administrative act, repeal of administrative act, inexistence of administrative act, abolishment of administrative act and so on by comparing their connotation. Administrative act will be invalid only in existence of significance and obvious defect and in this situation it will have no sanction, no confirmation and no defacto force. The rights and obligations that brought will be retracted. Chapter two is about the theoretical foundation of invalid administrative act. Defacto force of administrative act has limitation, which is invalid administrative act theoretically relying on. Defacto force is one of virtuous contents of administrative act. It means that once administrative act was made, there would be the legal validities for anyone to presume that it was legal and should be respected. As administrative subject performs administrative act representing for state, the law endues administrative act with property of natural definition. Recently, as the democracy legal idea and administrative law become more deepening, this concept is oppugned. Now there are two theories: limited defacto force and absolute defacto force. In this paper, the theory of limited defacto force is supported, and is regarded as the theoretic foundation of invalid administrative act. Civil rights opposes administrative power is the value objective of invalid administrative act. Administrative power is actually in the center position of state power structure in modern society, and its intensity and extent of effect is incomparable for legislative and imperia. Administrative power infracting civil rights will be greatly increased if there is no limit. Invalid administrative act system in nature is to endue citizen with right to resist against those obvious illegal administrative acts and to protect legal rights and interests. This is the necessary request of modern rule of law and idea of right. It will be in favor of resisting administrative peremptoriness and reducing administrative power cost and exerting the enthusiasm of citizen to supervise administrative power. Reparation for disadvantage of traditional administrative relief measures is the actual function of invalid administrative act. "relief going with power"and "relief being rather than power itself"are the elementary concepts of modern rule of law .When the power was endued, there should be the relief measures, so that when civil rights are infracted they can eliminate the infraction, obtain compensation or expiation. The traditional administrative relief measures are administrative reconsideration, administrative litigation and appeal. The disadvantage of these measures is passive, afterwards and low efficient. The establishment of administrative act system endues party with active right of resistance to protect legal rights and interests and to avoid infraction happening and enlarging. Also it overcomes the long waiting time and complex procedures of traditional administrative relief measures. At the same time it can supervise the performance of administrative power, resist against abusing administrative power, modify work attitude of administrative object and promote administrating by law. Chapter three is about the affirming norms, affirming procedures and legal result. Generalizing norms of invalid administrative act have formed a series of theories in administrative theories, and "significance and obvious"occupies dominant position. Only when there are significance and obvious defects can administrative act be cognized invalid. "significance"means that administrative act is so significantly illegal that even the trust protection principle can explainfor it; "obvious"is to say that the defects of administrative act are clear at a glance, and anyone can easily distinguish them. This theory is accepted by many countries when they make the law. Every country makes specific stipulation for the sake of simple operation, and enumerates the defects on the aspects such as invalid administrative act object, content, form, procedure and so on. It is helpful for mastery and exertion. Private party of invalid administrative act can regard it invalid and also can relative government organization announces it invalid. Though invalid administrative act doesn't have the legal effectiveness that administrative act object expected, it will bring law results as administrative act. Invalid administrative act doesn't have defacto force and can't be deduced available. Private party will not obligated by invalid administrative act. There is no time limit for private party claiming or relative government organization announcing administrative act invalid. Once administrative act was announced invalid, all that administrative act obtained from private party should be given back, and all obligation should be cancelled, and loss of private party should be compensated. Chapter four is about the actuality and improvement of invalid administrative act system. In our country administrative theory occurs relatively late, and there are so many problems to solve and shall be improved. Uniform invalid administrative act system hasn't been established. There is no systemic prescription for invalid administrative act system in law. But in some administrative statutes there are relief measures such as announcing invalid, and also there are some specific prescription for private party "having right to resist"and "having right to refuse". In our country, "administrative punishment invalid"occurred in "Administrative Punishment Law"first. The illumination of The Supreme Court to "Administrative Procedure Law"says that invalid sentence could be absolute sentence. That is invalid administrative act having been admitted by The Supreme Court. Though there are many disadvantaged in our invalid administrative act system, such as cognizance norms and conditions abstractive, lack support of law and so on. But it has been carried on...