Exposition Of Invalidation Of Administrative Action

Since Administrative Jurisprudence starts later in China, although making rapid development, there are some important problems of short of research unavoidably. The theory problem of invalid administrative action is a model. Invalidation of administrative action is an important problem in administrative action theories and scholars' elucidation has got common acception. But, at present the research of invalid administrative action is obviously insufficient in China, a lot of theories and practice still have no-man' s land. This article inquires into this theory of invalid administrative action superficially and hopes that it could be of benefit to practice of administrative judgment, legislation of administrative-procedure and protecting civil legitimate rights in China. This article is composed of six main parts including introduction and conclusion in the concrete.The Part-one is introduction of this article. It includes studying background, present situation, scope and significance mainly. This part interprets feasibility and necessity of writing this article roughly and plays an important role in leading the whole article.The Part two is the outline of invalid administrative action. On the basis of analyzing the intension of invalid administrative action, this part discusses simply the law characteristics from three points of view, they are content, authentic and relation of rights and duties of invalid administrative action. Then is clears the intension of invalid administrative action further through distinguishing and contrasting four concepts of being easy to confusing, these concepts include false appearance of administrative action, rescission of administrative action, abolition of administrative action, illegal administrative action and invalidation of administrative action.The Part three discusses mainly the rationale in invalid administrative action. At present, there are two different theories, they are the theory of limited public binding effect and the theory of complete public binding effect. This article supports the theory of limited-public binding effect and make it theory basis of invalid administrative action. Resisting administrative authority with civil rights is the value and objective of invalid administrative action. The original idea of invalid administrative action is giving citizens resistance right to resist obvious illegal administrative action and protect legitimate rights. It is inevitable requirement of modern rule by law and human rights idea. And the real function of invalid administrative action lies in making up insufficiency of traditional administrative relief. Private part in the administrative process can protect their legitimate rights through giving them active and diving resistance right, then it can avoid happening and expanding of real encoroching results and get rid of inconvenient because of time endlessness and procedure complication of traditional administrative relief.The Part four expounds affirmative standards and binding effect of invalid administrative action. It can divide the affirmative standards of invalid administrative action into common standard and concrete standard. It has formed a series of theories about the common standard of invalid administrative action in administrative law theories, the theory of vital and obvious blemish remains predominant among them. This theory thinks that an administrative action can be maintained invalid when it has vital and obvious blemish. But, considering the invalid administrative action only by the common standard is insufficient obviously. Therefore, administrative procedure law and court legal precedents of every country have established a few concrete standard as well. Administrative action is invalid certainly and definitely when it has clear cases of law rules. These concrete standards embody mainly in main body blemish, jurisdiction blemish, content blemish, from blemish and procedure blemish. Invalid administrative action need be maintained through fixed forms. There are two main forms: on the basis of law rules administrative action can be maintained invalid directly. Administrative action is confirmed and declared invalid. Although administrative action can not achieve binding effect which administrative law subject expect after it is declared invalid, administrative action still exists objectively and could produce fixed law results.The Part five analyses that a lot of drawbacks exist in respect of legislation of invalid administrative action through expounding and summing up the legislation situation of invalid administrative action in China. For example, the concept of invalidation is blurred, lacking unified standard to judge invalidation, lacking independent litigation procedure to confirm invalidation and the drawback exists in the principle of accusation does not stop implementing in litigation of confirming invalidation. This article advances some suggestion to consummate legislation is interrelated in China in view of the drawbacks and insufficiencies above-mentioned. It is necessary to strengthen theory research about invalid administrative action, correct and integrate invalid legal provision in decrees in effect, cite clearly invalid administrative action and law results in legislation, establish independent litigation procedure to confirm invalidation and consummate the system of not implementing invalid administrative action.The final part is this article's conclusion. On the basis of summing up the contents above-mentioned, this part emphasizes that invalid administrative action is an important content in Administrative Jurisprudence and should attach great importance to invalid administrative action in the respect of theory and legislation. Establishing the system of perfect invalid administrative action is a certain requirement in the country of rule by law, there is active and real points in the respect of raising practice efficiency of administrative judgment, consummating further the legislation of administrative procedure and protecting civil legitimate rights.