The Study On Invalid Administrative Act

The system of invalid administrative act is an important legal system in countries and areas in continental law family. This essay expounds the current legislation in China on the basis of analyzing mature theory and legislation aboard and gives the writer's own suggestions. The writer wishes that this research could have a support to the system designing and theory perfecting, and hopes it could help to solute practical problem effectively . There are six parts in the essay.The first part is a preface which introduces the domestic and international present research after a derivation of case which has the problem discussed here and descries objective discussed and method used in the essay.The second part is a general statement of invalid administrative act. This part introduce the conception of invalid administrative act in countries and areas in continental law family at first, then it has a introduction and study on the various ideas of the conception of ours, next analysis the characteristic of invalid administrative act, finally compare the conceptions of invalid administrative act with non-existence administrative act and revocable administrative act with illegal administrative act.The third part elaborate the legal theoretical foundation of invalid administrative act, see the limitation of authority. Here writer explicates the reason why has many views in limitation of authority and the boundary theories of authority which has two kinds: absolute authority and limited authority. And at the end it puts forward that only the system of invalid administrative act which is based on the theory of limitation ofauthority ,can keep accordance with the value of modern administrative law and meet the requirement of modern rule of administration law, they can build up a new method to limit the administrative power ,see right limits power. So invalid administrative act must be on the basis of limitation of authority.The forth part states the system of invalid administrative act including standard of confirmation, remedy and transform of invalid administrative act. Standard of confirmation is a start to system of invalid administrative act and its main method of lawmaking is combining common standard with concrete standard. Remedy of invalid administrative act, which is a conjunction of public remedy and private remedy, is quiet different from other remedies for illegal administrative act that can only seek for public remedy. As to transform of invalid administrative act, it is only allowed under the consideration of the public interests.The final part expounds related current legislation and its construction in China. It is very important to construct a system of invalid administrative because there are many things that would make people unsatisfied in our legislation and judicatory. In the part, after analyzing the writer gives some suggestion as follows: (1) to make the standard of invalid administrative act explici; (2) to enact an independent procedural law of invalid administrative act; (3) to set up system of "resistance should be applied" and "contention should stop execution"; (4)to make sure that people has a right to resistance against invalid administrative act and enact the rule of right to resistance; (5)to modify administrative remedy law and enact an uniform administrative procedure law.