Research On The Legalization Of Non-compulsive Administrative Act

The non-compulsive administrative act, including the administrative instruction, the administrative contract, the administrative reward, the administrative mediation, the administration funds, the administration information service and so on is a new kind of administrative acts. Nowadays, it is used more broadly, and its influence is greater and greater along with our country politics economic revolution deepening. On another hand, non-compulsive administrative act is not completely affirmed in lawmaking.Therefore, it has defectiveness in Administering and Judicature. This article defers to the clue"proposing the question to analyzing the question to answering the question"and takes"the legalization of non-compulsive administrative act"as the theme to elaborate my opinion.The first part is about the basic theory of non-compulsive administrative act. I give a concept to non-compulsive administrative as'a new kind of administrative acts, which is done by administrative power, without obedience and acceptance of the private party in process administrative management'. The non-compulsive administrative act to propose has its time inevitability and the objective necessity.The time inevitability refers to that the non-compulsive administrative act is our country government changing its style from management to service and request of constructing socialism harmonious society. The objective necessity is refers the non-compulsive administrative act have both the characters of administrative acts and the characters of non-compulsive acts.The second part is about the necessity of the legalization of non-compulsive administrative act. First, I make a research on the main kinds of non-compulsive administrative acts, including the administrative instruction, the administrative contract, the administrative reward, the administrative mediation, the administration funds, and the administration information service separately. Then I make a simple suggestion. Next, I generalize the common characters base on above search. The characters are below: firstly, administrative object dose not respect the administrative private party's will; secondly lack of the strict procedures; thirdly, the behavior way is not in standard; fourthly negative administration; fifthly the administrative object exploit power or is in cahoots a third party to aggrieve private party's rights; sixthly ,lack of the judicial relief. Finally, I try to elaborate the vital significance in both practice and theory. In theoretically, the legalization of non-compulsive administrative act will provides the good theory platform to develop. It accords with administrative law's basic sprits. It is requested by legal system self-perfection. In practice, the legalization of non-compulsive administrative act will be helpful for restricting government's power and enhancing the government's efficiency.The third part is about the suggestions to legalization of non-compulsive administrative act. It is the core part. I try to obtain the conclusion according to the first two parts make the suggestions. I will separate it to three parts as lawmaking, Administering of law and Judicature.In the aspect of lawmaking, I emphasized giving non-compulsive administrative act the independence legal status and correct its defects. The concrete suggestion has following several points: First, we should recognized non-compulsive administrative act as a new kind of administrative acts, in order to give it broader development space. It will make the basic principle system of the administrative law to be richer. Second, non-compulsive administrative act must take the administrative law basic principle as the instruction. Non-compulsive administrative act itself is softly. When legal regulation doesn't work, we should use basic principle. Third, the object of non-compulsive administrative act should be clearly in legalization. It is the first step for the legalization of non-compulsive administrative act. Fourth, we should confirm the private party's rejection right. Even if is legitimate and reasonable, the right also exist.In the aspect of Administering, the legalization of non-compulsive administrative act must strictly follow the legal procedures and forms. On the one hand, any behavior violates the legal form is invalidation. On the other hand,the way of the legalization of non-compulsive administrative act should be softly. The object and the private party should be au pair. The object mustn't compel the private party submit. If not it will be punished.In the aspect of Judicature, I think the revolution has three main directions as below: First, private party should be allowed proceeding against the government's non-compulsive administrative act. The standard must change from"behavior"to"right". We also should admit the differences between non-compulsive administrative act and compulsive administrative act. So, some conditions exist. Second, mediation principle should be used in court and out court. A important character of non-compulsive administrative act is respecting private party's will, so mediation principle's application is reasonable. Third, the private party should be allowed to request administrative indemnity based on fair principle. Recover the right is used for primarily, damage compensate for auxiliary. The standard amount should be a sum total of direct actual loss and the direct benefit anticipated. In addition, we consider the administrative object's finance bearing capacity as a factor.