The Reconfiguration Of The Force System Of Administrative Action

The force theory of administrative action is the major theoretical problem at the administrative law of civil law system, having always been at the centre position on the study of administrative action and is the life of administrative action. The purpose of this paper is to make up for the deficiencies on the issue of the force problem at China's theoretical circles for a long time. On the basis of defining the related concept and pointing out that the social foundation of administrative action force has made a major change, I give an objective evaluation to the research methods and the specific contents of the existing force system, point out its shortcomings, and then carry on restructuring with the new research technique to the administrative action force system, in order to grasp the real righteousness of the administrative action force with every effort, promote our country's administration trial, the administration enforcement activity practice and the administrative procedural law research.This paper altogether is divided into four parts. Content summary of various part is as follows:The first part: introduction of administrative action force. This part mainly involves the limits of the administrative action, the administrative action force and the theories which form in the administrative action force's actual content aspect in different countries and areas. Define and have been clear about this article's range of study, and have laid the foundation for the reconfiguration of the force system of administrative actionThe second part: the social necessity for the reconfiguration of the force system. This part mainly introduced that the administrative action force system's social basis moves toward the service administration by the order administration, the influence of different social basis to administrative action force . Point out that our country realistic society is transforming from the order administration to service administration, social basis's transformation brings the administrative action force system's change inevitably, so it is necessary to carry on restructuring theoretically to the force system.The third part: the evaluation of existing theory. This part first analyzes the question which exists at the research technique aspect in the existing logically coherent argument of our country: difficult problems of conceptual analysis method, insufficiency of the time assurance, the process again the result under the service administration, lacks on the exchange with other discipline. Then appraise the question which exists in the content aspect of the existing logically coherent argument, point out that the flaw at main theory basis aspect of presume-legal validity, the blank exists in the law, administrative action's other force have no existence and independence with presume-legal validity, own imperfection of presume-legal validity, presume-legal validity violates the socialism government by law idea, so we should abandon the presume-legal validity theory. We have the necessity transform to the validity of invariableness and the validity of restriction in order to avoid the confusion and the content in theoretically overlaps.The fourth part: The reconfiguration of the force system of administrative action. This part first proposes the method to the reconfiguration of the force system of administrative action displaced Administrative action process theory. Point out that we should carry on restructuring to the force system of administrative action with the method of tendency discussion, the method of whole discussion, and the method of stage discussion. Then emphasize the content of administrative action force :the validity of continuation, the validity of constitution ,the validity of fulfillment. The validity of continuation includes the form and the essence validity of continuation, is mainly restrains the administrative body and the administrative relative person, prevents them from changing, cancelling and abolishing the administrative action optionally. The validity of constitution restraints other institutions, court and the third person except the administrative body and the administrative relative person. The validity of fulfillment is the validity which carries out the goal or the content of the administrative action. And the validity of continuation is the core of the administrative action force, is the premise and foundation of the validity of constitution and the validity of fulfillment. Their three constitution complete the force of administrative action. Regarding other questions of administrative action force system, the shape of administrative action force and so on, the theorists do not have the difference nearly, so this article has not performed to elaborate.