On Judicial Review To Internal Administrative Act

According to the Administrative Procedure Law of the People's Republic of China, the internal administrative act is outside the scope of judicial review by courts, which deviates seriously from the constitutional principle of ruling the state according to law and also produces a negative influence that the legal rights and interests of civil servants are often violated at will in practice.The theory of special power relationship that was once in vogue in Germany, Japan and other countries is very much like the current circumstances of our country. But this theory has evolved greatly with the wave of human rights and rule of law rising since the World War II and many fields of the special power relationship have been brought into the scope of judicial review. The article holds that we should draw lessons from the development of the theory about special power relationship to reform the current legislation and judicature about internal administrative act legally. The reform includes adhering to the principle of law reserve and the principle of legitimate procedure conformity to improve the legislation of internal administrative act and establish the premise of judicial review, sticking to limited judicial review and priority of administrative remedy to set up the basic principles of judicial review, and fixing the scope and mode of it reasonably to establish a concrete system of judicial review.