Discussion On The Judicial Review Of The Abstractive Act Of Administration

The abstractive act of administration is also called the act theadministrative entity performs to set up universal administrative managementregulations, that is, aiming at unfixed counterpart in administrationmanagement; the administrative entity unilaterally takes the administrativeactions which have universal sanctions. In order to further understand thisconcept, it is necessary to make a comparison with the concreteadministrative act. What is in contrast to abstract administrative act isconcrete administrative act. What they have in common is that they are alladministrative acts. From the point of view of subject element, both of themare acts taken by the national administration departments. In terms offunction element, they are both taken by the administrative departmentswhich exert the act of administrative management. In terms of pattern ofbehavior, they both are initiative, unilateral and beneficial. In terms of patterneffectiveness, both of them have the official force, confirmative force andexecutive force. The differences between abstractive and concreteadministrative act are the following: the aim of abstractive act ofadministration is the unfixed object while the aim of concreteadministrative act is the given object; abstractive act of administration ischaracteristic of multiple and repeated application while concreteadministrative act has the force for only one time; in terms of patterncharacteristics, abstractive act of administration is closer to the legislationact which has relatively strict procedures while concrete administrative acthas different kinds such as the act issuing licenses according to applications;the act executing administrative punishment or enforcement according toauthority; in terms of form, abstractive act of administration is in writtenform and requires publicity while concrete administrative act can be inwritten form.The judicial review of the abstractive act of administration is oneimportant problem in administrative litigation, which has been discussed bythe academic circles home and abroad. Many advanced countries haveestablished the judicial review system quite early and the judicial power haseffectively restricted the administrative power and protects the civil legalrights. In contrast, since China automatically established the administrativelitigation system, due to historical and conceptual reasons, the judicialdepartments can only execute the judicial review to concrete administrativeact and abstractive act of administration has been excluded from the range ofjudicial review. Nowadays, when we exert the administration according tolaw, this situation can no longer meet the requirement of rule of law anddemocracy. It has become a trend for the development of constitutionalsystem to use judicial power to control administrative power and prevent itsillegal harm to civil right.By using the act foreign countries take to use theories and practices ofadministrative law to perform judicial review to abstractive act ofadministration for reference, this paper analyzes and assesses the necessityand feasibility of the establishment of judicial review to abstractive act ofadministration in China and on this basis conceive the establishment ofjudicial review of abstractive act of administration in China so as to makesome contributions to the present theoretical research and judicial practice ofjudicial review in China.This paper has three parts in terms of organization. The main contentsare as following:This first part is the introduction on abstractive act of administration.The paper firstly makes an analysis on the concept of abstractive act ofadministration and the similarities and differences it has with concreteadministrative act. The paper analyses the tortuous behavior of abstractive actof administration and finds out that the root of this behavior is the fact thatthe present supervision system on abstractive act of administration can noteffectively control administrative power. The paper respectively analyses theexisting problems in right department supervision, administrative departmentsupervision and judicial supervision. Secondly, the paper makes an analysison the historical and conceptual reasons why our country has not exertjudicial review on abstractive act of administration. Finally, the paperelucidates the necessity our country has to exert judicial review on abstractiveadministration act. This paper thinks that it is an unavoidable trend for powerrestriction to exert judicial review on abstractive act of administration, whichis beneficial to protect the legal rights and interests of counterparts. It meetsthe need to improve administrative efficiency and is the necessary need topromote the legal system construction and social development.The second part discusses the feasibility for judicial view on abstractiveact of administration. First of all, this paper makes a comparative analysis tothe judicial reviews in Britain, the United States and several countries on theEuropean Continent. On this basis, the paper discusses the necessity to exertjudicial review on abstractive act of administration. Secondly, the paperpoints out that the practice of administrative litigation in our country hasestablished the basis for the administrative act of judicial review. Besides, thelegislation in our country provides the legal basis for judicial review onabstractive act of administration and the civil consciousness foradministrative litigation has been enhanced. At last, due to the accumulationof administrative law experience in our country, to put abstractive act ofadministration into judicial review has the ability to be used for reference interms of experience.The third part discusses the thought to put abstractive act ofadministration into judicial review. The paper proposes the author's ideasconcerning the review range, litigating conditions, review patterns, legalforce of judicial review, the connection between judicial review andconcerning supervision patterns.In the aspect of review range, according to the paper, it is not proper tobring administrative laws and regulations into judicial review. In the aspect oflitigating conditions, first of all, the accuser must be the counterpart ofabstractive act of administration. Secondly, the accuser should have legalinterest with abstractive act of administration, that is, the relationship ofrights and regulations in terms of administrative law. Finally, the counterpartshould not prosecute in precondition that his body and possession right haveactually been affected, instead, he should permit all people who have thepossibility to be affected against their favor to litigate.In the aspect of review pattern, according to the paper, the pattern the...