The Study On Administrative Affirmation

Administrative affirmation is one kind of particular administrative action, which is made by administrative organ for testify, confirm(or negate) legal status ,legal relation and legal fact of private party in the administrative process, and administrative organ declared it to the public. The legal system of administrative affirmation has the function to prevent and refrain the dispute on the affirmation of legal relation, legal position and legal facts between or among the private parties, and has play a important role in the administrative law theory and practice. But administrative affirmation has not a legal concept, but a theoretic concept in administrative law theory. The theory of administrative law has gotten great achievement since the opening up and reform in the mainland, and in recent years, administrative lawyers have come to realize that administrative affirmation, to the accompaniment of theoretical controversy, has been accepted as desirable administrative device to enforce public policy. But the study of administrative affirmation is so weak that administrative lawyers have not get unanimous conclusion, even the nature of administrative affirmation which the scholars are the two opposite sides. The situation has lead to confused order in the practice. To deepen the theory of administrative affirmation is helpful for promotion of the level of the administrative management and protection of the right of private parties. So the paper focuses on an exploration of administrative affirmation with the aims of constructing the whole theory of administrative affirmation and providing theoretical references for China's practice of administrative affirmation. The paper can be regarded as a striving for a comprehensive account of such matter.This paper bases its study on the administrative law practice and theories of this country. It also absorbs and uses for reference the experiences and research achievements of the administrative law of the foreign countries, especially of the western developed countries. Thispaper has preliminarily formulated a theoretical framework of administrative affirmation. This paper is divided into three parts.The First chapter, "General Theories on administrative affirmation", fall its focus on legal ideas and doctrines involving administrative affirmation. The author starts with definitions. Noting the different definitions giver to administrative affirmation from various perspectives, the author arrives at her own definition administrative affirmation. The author comment all the definitions her can search. On this point her own definition is almost identical with that expressed by the other scholars. That is, administrative affirmation refers one kind of administrative act, which is made by administrative organ for testify n confirm(or negate) legal status ,legal relation and legal fact of private party in the administrative process, and administrative organ declared it to the public. Then author sector administrative affirmation by different criterions to deepen the concept. The author describes the features and functions of administrative affirmation. The author believes the system of administrative affirmation has the function to prevent and refrain the dispute on the affirmation of legal relation, legal position and legal facts between or among the private parties, to promotion the management of government, to protect the rights of private parties and save the evidence before the litigation. To make it clearly, the author compare administrative affirmation to administrative license and administrative determinations. These general analyses of administrative affirmation construct the basement of the coming parts.The second chapter, "Theoretical foundations for administrative affirmation", briefly reviewing the Theoretical foundations from different approach. The theory of administrative affirmation determines the status of the institution of administrative affirmation. But few lawyers discuss the topic. The author starts with sociology theory, which explores social root of society of strangers (abstract society) and the national credit nature of administrative affirmation. The legal philosophy(jurisprudence) think it by liberty and believe it a supplement of personal liberty and rights. The legal system of administrative affirmation legalizes the national credit and gives it legal enforcement power. The transformation regulates the credit system and makes it much better. In economical language, administrative affirmation brings public interest to the society by administrative power. .For public interest, the government uses its public power and public credit standing to support the special legal relation, legal status and legal facts, while its power being restricted by law. In constitutional theory, the administrative affirmation power been accepted as desirable administrative device to enforce public policy, but it has danger to be abused by administrative bodies and must be under the rule of law. we should keep the independent value of power controlled by right.In the last chapter, "Institutional construction of administrative affirmation", the author first represents the unfavorable situation of administrative affirmation and give them institutional reasons. The undeveloped procedure of administrative affirmation give administrative affirmation too much space to abuse administrative power. Some administrative bodies use administrative affirmation power to make money for the agency or themselves under no legal control because no law has been made to abide by and no efficient supervise agency or system exist. Then the author offers the author's suggestions for reform of administrative affirmation. The author lists five legal principles of administrative affirmation and explain them clearly one by one to give some macroscopically guidelines. Then the author writes administrative affirmation procedures, from application, accept, auditing to affirmation to regulate administrative power. In the procedure part, the author emphasize administrative instruct procedure and want to give administrative responsibility to false instruct, while no law has regulation to punish administrative affirmation agency. Legal opinions have important effect to the administrative and the author lists and analysis the...