On The Remediation For The Defects In Administrative Act

Nowadays, the administrative affairs of a country are numerous and complicated, so the importance of the administrative law is even increasing. The administrative act among all enjoy the broadcast sphere of application and its effect on private party in the administrative process is of the most direct one, so it is of particular importance that administrative act be legal. But in reality, the administrative act has various kinds of defects, affecting the efficiency of the administrative act and private party's rightful interests. According to the principle of the rule of law, the defective administrative act should be invalidated or revoked. But to invalidate or revoke all administrative acts with defects is too mechanical to fit the principle of administrative efficient and to protect fully the rights of private party. Therefore, the slight procedure defect should be remedied and rescued. Currently, our country is lacking the in- depth theoretical research on the legal consequences and liability of the defected administrative act with no systematic regulation on legislation while the manifestation of legal liability for defected administrative act is restricted only to being invalidated or revoked. In the administrative laws and regulations, there are no clear and definite amendments, which is of no good to the saving of administrative resources and improving of administrative efficiency. This thesis starts from the basic definition, under the precondition of presenting the basic theory of remediation, to the overall expounding of the remediation system, and then it analyzes the current state of legislation concerning remediation and makes a bold projection for the legislation. The paper is divided into four parts.The first part gives the definition of administrative act, defect and remediation. The concepts of administrative act and concrete administrative act are closely interrelated. In China,"concrete administrative act", as the subordinate concept of"administrative act"refers to the legal behavior shown by the administrative subject when carrying out administrative management and exercising administrative powers, which is massively extended concept. The counterpart of concrete administrative act is abstract administrative act. The concepts of administrative act and"concrete administrative act"have aroused many disputes in the theory and practice of our administrative law, giving rise to many drawbacks: the self- contradictory concept and classification; the chaotic system and the loosely- knit logic. The author agrees with the point view of some experts who define administrative act as"the direct external effective legal act produced by the administrative subject when they perform national administrative powers while targeting at concrete cases and facts". Defect, equivalent to violation of law refers to any act that does not comply with the legitimate condition of administrative act. Remediation means the self- correction by the administrative subjects with the slightly defected administrative act, procedural or formal and the afterward supplementation and correction of the illegal administrative act so as to retain the validity and force of these acts. Remediation, like revocation and invalidation is one of the legal remedial measures against the illegal of the administrative act itself as well as one of the legal liability and consequences of defected administrative act.The second part tells the theoretical basis of remediation. Firstly, remediation protects the public interests; secondly, remediation is needed to ensure the stability of law and the trustworthiness of private party in the administrative process; thirdly, remediation is the cooperation of the value of procedure.The third part elaborates in detail on the remediation system. Remediation is eligible for slight formal or procedural defect. Procedure refers to the procedure ruled by law and excluding the autonomy process."Law"entails legislation, administrative regulations and administrative rules. As we lack the judicial practice of remediation for administrative act, the concrete conditions fit for the remediation are intangible. So, after telling clearly the conditions suitable for remediation, the author lists as well four cases where remediation is denied in principle, including disobedience of avoidance behavior, violation of defense procedure, violation of inform rule and the regulation that one should state clearly the proof. The violation of these procedures should not be remedied even though it does not affect administrative decisions. Apart from the remediation conditions, the part also discusses the date time, subject, effect and way of operation of the remediation.The fourth part introduces the remediation system in the administrative legislation in China. There exist in China's remediation for procedural defect the following problems: first, there is no regulated administrative code. The administrative relief system such as the Administrative Reconsideration Law and the Administrative Litigation Law do not regard remediation as an independent mode and the remediation regulations mainly appear in some low- level administrative laws and regulations. Second, in the administrative laws and regulations, the sphere of application for remediation is too general to be practical. Third, it is about the mixed use of denominations and the coexistence of various definitions and application conditions for the same name, which lead to difficulty in practice. The existence of remediation system is closely independent on the regulated administrative procedural legislation. Without the warrant of a standard procedure, remediation is liable to become the excuse for the administrative subject's abuse of powers. Therefore, before the build- up of the remediation system for the administrative act, it is necessary to carry out a regulated administrative procedural code to define the remediation system as a mode for the administrative subject to undertake responsibility for procedural illegal and to stipulates clearly its application condition.