The Study Of The Factual Act In Administration

Like most of the other academic words, the "administrative factual behavior" was a result of the logical analysis on legal concept made by Romano-Germanic family. It originated from Germany first, and was imported to China by the Japanese. So it's a whole exotic thing to us. Along with the development of our service and for-giving administration, administrative factual behavior plays a more and more important role in the course of administration for its flexibility and variety. The administrative factual behavior can let the clarity of the administration activities come true, and help to protect the legal rights of the administrative target-person. However, we scholars haven't a united concept for the administrative factual behavior. Our administrative law scholars put lots of their studies on the concrete administration behavior in the past, and look down upon the administrative factual behavior. Quite a lot of scholars limited the administrative factual behavior to several violence torts made by the government and its staffs that mentioned in the "State Compensation Law". Thus shrink the range of the administrative factual behavior, and discouraged the reach of the administrative factual behavior. The more the administrative factual behavior is put into use, the more possibilities exit that the target person's rights will be tort. There's an inevitable problem for us that how to give the legal remedies to the torte rights to protect individual better, and keep balance and accordance between the power and the right. To make clear the concept and the sort of the administrative factual behavior, and to give the necessary legal remedies to the torte rights, is not only the inner demand of the construction of ruling of law, but also the require of the administration according to law. Also, it shows the principle of reliance protection, and it is the insurance of the conduction of rights. After the study of all the definitions, the author recons that the administrative factual behavior is a kind of administrative actions, and it's the correspondence for the administrativelegal action. Although without aiming to establish exchange or eliminate the rights of the administrative target-person, the administrative factual behavior executed by the government and its staff, or by the organizations authorized by the government, do have some legal results. After this, the author also discusses on the legal opponents and the classification of the administrative factual behavior, and also the difference between the administrative factual behavior and the other administrative behaviors in the way of history, comparison, and dialectic. To understand the meaning of the administrative factual behavior is to probe the path of legal control and remedy for the administrative factual behavior, from the angle of the target person rights. In order to solve this problem, the article studies the legal remedies of the administrative factual behavior in the world, and analysis the judicial inspection and the legal remedy in our country. In the end, the article points out that we can put the administrative factual behavior into the legal adjustment by legislation and judicial interpretation. The administrative factual behavior should be bringing into the administrative proceedings, and should not be used with the administrative reconsideration and the administration-ending-judgment. As the revising to the "State Compensation Law" is mentioned, the author raises some proposals which including the enlargement of the state compensation content to the administrative factual behavior for the public rights, illegal administrative guidance, and the publication of the inaccurate intelligence reports.