The Judicial Review Of The Abstract Administrative Acts

Along with the gradually development of construction of administrative legal system, a problem of judicial review of abstract administrative acts come into emerge. At the primary stage of establishing of the system of administrative litigation, seldom people have consciousness of law and the national legislation is in a developing condition. Therefore, it's reasonable for people's court only review the concrete administrative acts, but the abstract administrative act. However, through the development of administrative litigation more than ten years, more and more people strengthen their consciousness of law. And under the background of the reinforcement of the concrete administrative acts, the nation needs to set a still higher demand on the level of the execution of politics and law. Thus, it not only needs to norm the concrete administration acts, but also norm the abstract administrative acts. The facts state that some specific abstract administrative acts have become a main of the government for pursuing local protectionism which directly influences the formation of unity of domestic market, affecting the development of socialist market-oriented economy of china healthy and orderly. Especially under the condition that china joins the WTO, the government unavoidably face some serious problems: how to implement the national promises feasibly and how to fulfill the duties which are formulated by WTO etc. Since WTO initiates the liberalism and indiscrimination of trade, administrative measure that affects the trade which is carried out by each member of the WTO should accept the reviewing. Undoubtedly, the administrative measures not only include the concrete administrative acts, but also the abstract administrative acts. Thus, for conforming to the demand of WTO, a mechanism should be build up, especially the mechanism of the judicial review of the abstract administrative acts. It's not only need to review and supervise the abstract administrative acts which influence the trade, but need to review other factors of the abstract administrative acts which are influence economy, social activities, personal right and property right. The establishment of the mechanism of the judicial review of the abstract administrative acts directly involving the current rules and regulations of judicial review, as well as some other complex problems, such as the operation. This dissertation concerns the practice and basic theories of the abstract administrative acts at first, then deeply analyzes the connotation of the abstract administrative acts, moreover, superficially discusses the problem of how to establish the system of abstract administrative acts in china. This dissertation composes of six chapters. In the first chapter, the author elaborates the existing problem of the judicial review of the abstract administrative acts from three aspects which are based on the true cases. The department protectionism and the local protectionism are obvious in the process of the establishment of the abstract administrative acts; the normal administrative doctrines which are made by the administrative department at all levels lack of a unity standard. The author also analyzes the current system of the judicial review and a few methods of the reviewing. The methods are: supervise of the national government, put on record, sort out law and regulations, and reconsider the administrative and the inspect of the society; finally, the author discusses the practice and review of the abstract administrative acts of china from three different points of view. Rightly seeing through the cultural difference between the east and the west; correctly handling the relation between the change of the system and the bearing degree of the society; having a correct understanding of the relationship between the supervise of the abstract administrative acts by organs of state power and the judicial review of the abstract administrative acts. The second chapter mainly discusses the fundamental theories of the abstract administrative acts. The characteristic of the concept of the abstract administrative acts is concluded from the explanations of different scholars,and adopting a point which is popular in the law circles. The difference between the concrete and abstract administrative acts is that one analyzes the law from the angle of activity and the other from the angle of result. The category of the abstract administrative acts is from the angle of the legislation. The paper categorizes the abstract administrative acts into certain types according to the different classification standard. Chapter three mainly elaborates the comparison of the judicial review of the abstract administrative acts of china and foreign country. The main points run as follows: first, the comparison of the factors which affect the judicial review of the abstract administrative acts. The factors are: the system of administration, the situation of the independence of privilege, the degree of the legislation and the people's consciousness of right. Second, the comparison of the reviewing scope of the abstract administrative acts. The major methods are: reviewing all the abstract administrative acts, the enumerate reviewing and the admixture reviewing. Third, the comparison of the reviewing standard of the abstract administrative acts. It goes through the process from the legitimate reviewing to regard legimacy as main principle and assist with rationality. Fourth, the comparison between the judicial review of the abstract administrative acts and the violation of the constitution. It means that constitute court, administrative court and common court all have the right to review the abstract administrative acts. Chapter four explains the theoretical foundation of the judicial review of the legal principle and the different theories of how to review. About whether reviewing the abstract administrative acts or not, different scholars have different opinions in domestic and international. Some scholars say the judicial review of the abstract administrative acts is applicant; some say the judicial organ of state power has no reviewing right; some say judicial powers interference the administrative power.