On The Actionability Of The Administrative Guidance Acts

Administrative guidance was firstly born in Japan, and then spread to main market economy countries, such as the USA, UK, France, and Germany. Respecting administrative relatives' will as its premise, administrative relatives' identity and participation as its form, administrative guidance is a soft management pattern of decentralization, not only does it do good to the transformation of government functions and the development of administrative reforms, but to promote the administration democratization. Today, administrative guidance is an important administrative pattern in the countries with market economy. It is becoming the center of present-day government administration because of its incomparable superiority. For a long time, however, owing to the misapprehension about property of administrative guidance, most countries did not attach great importance to administrative guidance and did not take effective remedial measures, which results in cases that hurt private party in the administrative process happening with frequency. In our country, we did not know and do research to the administrative guidance until to 1980s, and there has been some thesis published about the administration guidance. But for many reasons, the research has not reached a reasonable level. There are different opinions about administration guidance, which affect the relief degree to administration guidance. In practice, there are many cases in which administration guidance is abused by administration department and the rights of the private party are invaded in the administrative process, which cannot get relief. What accompanies the administration power is the control of the administration power. Therefore, it is of greet need to give administration guidance relief. This is what this thesis is going to talk about.The writer will briefly introduce the content of each part of the thesis:This dissertation consists of three parts. The first part mainly analyses the basic theory of administrative guidance. Starting from the definition of administrative guidance, it introduces respectively the main ideas to Japanese law field and the representative viewpoint of Chinese administration law field to the definition of administrative guidance. Then the nature analysis of administrative guidance is discussed. By firstly the research on the relationship between authority behavior and compulsory and then the relationship between the factual behaviors and administrative behaviors, the definition of administrative guidance nature is concluded. The elaboration of the type of administrative guidance is carried out in terms of different prospective. According to the administrative guidance function, it is made up of the regulative administrative guidance, the adjustable administrative guidance, and the furtherance administrative guidance. According to whether there is any legal basis to the administrative guidance, may its division be two kinds, namely the administrative guidance with legal basis and the administrative guidance without legal basis. Besides, according to the right and obligation difference the administrative guidance involves, it may be divided into the interior administrative guidance and exterior administrative guidance. According to whether administrative guidance executor has the duty to implement administrative guidance and fulfills this behavior in the certain deadline, it may be divided into the administrative guidance act and non-act. Moreover, in terms of whether there should be the certain legal form to the administrative guidance, the administrative guidance may be divided into administrative guidance with certain requires and without. At last, in the light of whether the deed aims at specific object, we may divide the administrative guidance into the abstract administrative guidance and the concrete administrative guidance.The second part is mainly about the relationship between administrative guidance and administrative rule by law. This part is the key of the article to transit from the administrative guidance elementary theory to the central argument. Through greater length elaboration and analysis, it draws up the conclusion. Firstly the outline of administrative rule by law is discussed, by introducing the evolution from"legally administration"to"the administration basis on rule by law"and the brief introduction to the development of the two big law branches about administration basis on rule by law. Then the thesis carries out deeply study on the relation between administrative guidance and administrative rule by law and finally draws out the conclusion that the compound function meets the meaning of the rule on law, and will inevitably be accepted by the changing rule on law.The third part is the key of the thesis. It research on the litigable nature of administrative guidance behavior from various angles. Above all, it separately carries on the introduction to Japanese and the American administrative guidance behavior lawsuit situation, which is the reference for bringing administrative guidance into administrative proceedings. In the next pace, the confusion to the administrative guidance judicial remedies theory is explained. First, the party damaged by administrative guidance should or not be given the judicial remedy. Second, the administrative guidance person should or not undertake the legal liability to his wrong or the illegal administrative guidance is discussed. Third, the private parties in the administrative process can or not institute the administrative litigation for the consequence of the administrative guidance. And fourth, how to carry on the relief towards the benefit damage by administrative guidance behavior dissociated outside the law. Subsequently, by necessary explanations to the possibility of administrative guidance tort, the reality damage of administrative guidance, and the necessity of instituting a administrative proceedings, the central issue is addressed at large and intensively. Then the author discusses the reality and problem about administrative guidance and its relief in our country. The last paragraph is the concrete conceiving of bringing administrative guidance into administrative proceedings. This part can be divided into two elaborations, which are the abstract administrative guidance and the concrete administrative guidance, and the latter consists of three parts: they are the administrative guidance which is dissimilated, the administrative guidance which is illegal, and the administrative guidance which disobeys the principle of good faith.Due to the current limitations of its constitutional constraints as well as political and cultural traditions, every countries makes certain restrictive provisions to the scope of cases of administrative proceedings. However, in the social development of the time, some kinds of administrative acts should be taken in the scope of judicial review when they are neither efficient to protection of the rights and interests of citizens nor unbeneficial to maintain and supervise the administrative organs to act by law. From a development point of view, it will be an inevitable trend of administrative procedure law to take the administrative guidance into the scope of judicial review. The thesis gives priority mainly to academic research, and as well takes into consideration of the practical problems. It will start from the basic theory of administrative guidance, and mainly use the study methods of a standardized analysis, deductive reasoning, inductive inference, and comparative studies and etc. It will focus on the research of the actionability of administrative guidance, and at the same time seek for deeply research and some innovation.