On Invalid Administrative Act

The theory of invalid administrative act is an important problem among the administrative act theories. It is a category having particular connotation. Invalid Administrative Act is a concept and a system of theory that belongs to the administrative law of continental countries. At present, there is not well-developed theory or system for invalid administrative act in China. There is not enough attention on the invalid administrative act in the field of law. What is even worse that there is no definition of the act in many teaching materials of law. Even though there are specific regulations for the definition of"invalid"in the present law, rules, regulations and other standardized document, the regulations are different from that of the administrative law through comparison. Thus the author feels urgent to compose this paper, which is divided into five chapters.The first chapter dedicates to the summarization of invalid administrative act. It is divided into two sections. The first section analyzes the conception of invalid administrative act and draws the following conclusion: invalid administrative acts refer to those administrative acts, already exist formally, but possessing no legal power due to the apparent violation of law. The second section introduces the theoretical basis of invalid administrative act. Public force belongs to the force of administrative act, meaning that once the act has been taken, it is considered to be legal to everybody and should be respected. Because the administrative act is the act that taken out by the administrative body on behalf of a country, it is often bestowed the property of fixed in advanced by law. In recent years, along with the better perception of the concept of democracy and law and the increasingly study of the administrative law, the above concept is confronted with impugnation. Recently, there are two different theories, which are"theory of limited public force"and"theory of absolute public force."This paper supports the first theory and adopts it as the theoretical evidence for invalid administrative act.The second chapter focuses on the discussion of the difference between the invalid administrative act and some relevant concepts. Being the five interrelated concepts of administrative law, they could either lead to the termination of administrative act, or present the invalidation of the act. Even though the results may be the same, the causes are different and the influence on the object of administration is also different. Through a comparative way this paper distinguishes the following concepts: the illegal administrative act , the withdrawal of administrative act , the non-existence of administrative act, the abolishment of the act and some other relevant concept. The invalid administrative act and withdrawal able act have a lot in common. However, they still have something different in the following aspects: causes, the public force, the principle body for judgment, the effectiveness for a given period of time, the time limit for suit and etc. The difference between the invalid administrative act and untenable act is represented mainly in two aspects: Constitutional conditions and results of relief. Both of the invalid administrative act and the illegal act consist of the illegal factors, but the result and the way of solutions are different. The major difference between invalid administrative act and the abolishment of the administrative act is the effectiveness for a given period of time and legality. Compared with the illegality of the invalid administrative law , the administrative act is legal before it is abolished.The third chapter is devoted to the recognition of the invalidation of the act. This part is divided into three sections. The first one analyzes the causes for invalid administrative act, which are summarized as general cause and essential cause. The study of the essential cause is from the following five perspectives: the defect of principle body, the defect of purview, the defect of content, the defect of form and that of procedure. The second section focuses on the discussion of the confirmation of the invalidation of the entitled governments'administrative act. This paper advocates that the standard for judging invalid administrative act and ordinary illegal administrative act lies in the confirmation of the existence of apparent and sever violation of law. However, the standard for deciding a severe and apparent violation of law is not fixed, because different people might have different criterion. If the entitled department does not confirm it, the object of the act might lose the right to seek for relief from ordinary illegal act. The author believes that there are three means for the confirmation of invalid administrative act. Firstly, it is up to the object of administration and other related people. Secondly, the administrative department has the right to decide. Thirdly, it could be confirmed by administrative court in the special administrative suit. The third section studies the results of the invalid administrative act. Concretely, the result of the invalid administrative act is represented through content of effect and way of judgment.The fourth chapter mainly focuses on the study of the relief of the invalid administrative act. First of all this paper investigates–the core of private relief—the problem of resisting power, focusing on the analysis of the system value of resisting power. In the following part this paper discusses the rationality and the importance of private relief and in the field of administrative law from the perspective of justice and efficiency. The realistic plight, which confronts the private relief in the field of administrative law, has also been discussed. Through the above investigation, the author promotes the preliminary design of the combination of private relief and public relief in the second section.The fifth chapter serves the study of the improvement of the system of invalid administrative act. Firstly it expounds the present situation of the research about the idiographic theory of invalid administrative act, combing with the study of a typical case. Through the discussion of the improvement of the system of invalid administrative act, the confirming standard for invalid act has been analyzed. It is recommended that a procedure for confirming invalidation should be established. To create the system of administrative object's resisting power and endow the resisting power to the object are considered rational and quite necessary. This paper also investigates the national repaying responsibility brought about by invalid administrative act, and advocates the improvement of the judicial procedures and the protection of the legal rights of the administrative object. The third section argues that the significance of establishing the system of invalid administrative act. It is believed that the establishment of the well-developed invalid administrative act system would help to spur the administrative department to improve the execution of law in order to realize the aim of execution according to law. In addition the establishment of the system could also help to realize the supervision of invalid administrative act and judicial relief in the process of judicial practice, and to enrich as well as improve the administrative relief system of our country. Meanwhile the system would also help to drive the officials in performing their duties rightly, to save the social costs, to realize the social impartiality, and to open up the field of theoretical study on administrative law.