A Study On The Rights Of Administrative Relative Person

At present, the protective degree of theory and practice on the rights of administrative relative person is still quite limited; the phenomenon that administrative power infringes rights of administrative relative person is still quite serious; various illegal phenomena in administration are bound to impact on the reliance and communication of the citizen to the government. Therefore, the author considers that while administrative law circle studying administrative power should pay attention on studying the rights of administrative relative person simultaneously. This paper will research on the basic theory of administrative relative person based on absorbing the research findings from both home and abroad and systematically research the rights system of administrative relative person and the important rights in it.The complete text is divided into four parts:I. The Concept and Characteristics of the Rights of Administrative Relative PersonThis paper considers that, the rights of administrative relative person mean various rights that are regulated or confirmed by the administration law, shared by administrative relative person in administrative legal relation, and corresponded with obligation of administrative subject in administrative law. The rights of administrative relative person have characteristics as following: the rights of administrative relative person are the rights regulated or confirmed by administrative law, are civil rights in public law, and are legalized rights; the rights of administrative relative person are the rights running through before-the-event, event and after-the-event of administrative activities, then the rights of enjoyment and implementation will be obtained, as long as the rights are in line with the conditions regulated by administrative law; the rights of administrative relative person are the rights corresponding to the obligation of administrative subject, subject of duty of administrative relative person's rights is mainly the subject of administration, that is, public power, not only limits to subject of public power, but also contains other obligors of the subject of public power; rights of administrative relative person shall be abandoned by administrative relative person oneself; rights of administrative relative person are the rights enjoyed by all the objects regulated by the administrative law, but not proprietary rights of specific individual. Right system of administrative relative person regulated by modern administrative law is a composite structure constructed by substantive rights and procedural rights together. From the view of the function of rights, the rights of administrative relative person can be divided into: right for protecting random; beneficial claim right; right for fair treatment; participatory right; administrative procedure right; remedy right. Right for protecting random, requested right, right for fair treatment and participatory right are belonging to substantive rights, while administrative procedural rights and remedy right are belonging to procedural rights.II. Distinction between the Rights of Administrative Relative Person and Other RightsFirst of all, this paper takes comparison on the relation between rights of administrative relative person and public right of administrative subject. It is proposed that most public right of administrative subject are substantive rights in right shape, while most public right of the relative persona are procedural rights, so its degree of dominance is far below public right of administrative subject. Secondly, based on the principle of balance, in order to level infringement to administrative relative person stressed by the domination and strength of public right of administrative subject, the administrative law limits the random of the administrative subject's behavior. Public right of administrative subject means obligation and responsibility; as for the obligation and responsibility, any subject has no right to handle and even abandon optionally. But the implementation of public right of relative person may regard as a manner of autonomy, its proprietors can handle public right for random. Secondly, in the relation between rights of administrative relative person and basic rights of constitutional law, basic rights of constitutional law are an extremely abstract of specific right of the citizen; and relative regulations of rights of administrative relative person in administrative law are a part of such embodied process. In one hand, rights of relative person regulated by the administrative law contain the embodiment in the constitution, which is the direct reference for the application of the constitutional rights; in the other hand, it still contains a large number of rights rather than basic rights. For rights of administrative relative person and civil rights, it is considered that rights of administrative relative person and citizen, and the civil rights of the legal person are belonging to private rights, but those two rights are the rights produced from different legal relationships, focusing on different objects, separating clearly in characteristics, and there is Incommensurability in application.III. Substantive Rights of Administrative Relative PersonSubstantive right of administrative relative person means that relative person stresses the right of control on droit or target. Such right is ability, qualification and benefit directly gained by administrative relative person as the subject of public law according to law. It is mainly consist of right for protecting random, right for fair treatment, participatory right and beneficial claim right. In administrative relationship, protecting the random of administrative relative person from the infringement of administrative subject has been an important right of administrative relative person. The administrative subject shall not implement any enforcement rather than warrant, once supervision and control are implemented, it must be legal reference, if there is no prohibition, there is random. Under the situation of no legal foundation existed in administrative subject, relative person can refuse any illegal behavior of administrative relative person. Right for protecting random contains the right counteracting illegal infringement of administrative subject and the right of compensation claim for infringing legal benefit. Right for fair treatment means the individual of administrative relative person shall get equal treatment of administrative subject in administrative behavior at the same situation. The administrative behavior of administrative subject for infringing equal treatment obligation shall be ineffective behavior. Participatory right means the right enjoyed as the identity of administrative relative person or administrative relative person. Participatory right is mainly presented as right of administrative knowing, participatory administrative right and administrative contract and licensing right. In the level of public service function, administrative subject has beneficial claim right of providing public service for administrative relative person, paying positive behavior of public interest as obligation, and then administrative relative person shall enjoy relative beneficial claim right for the administrative subject. Such right is right of claim; once claim, administrative subject should pay what claimed; relative person gets enjoyment of right, but not owe obligation, and the administrative subject shall fulfill responsibility and obligation. Generally speaking, beneficial claim right of administrative relative person contains supporting beneficiary right, developmental beneficiary right and protective beneficiary right.IV. Procedural Rights of Administrative Relative PersonProcedural rights of administrative relative person contain administrative procedure and remedy procedure. Administrative procedural rights mainly contain right of application, right of recusare, right of argument, the right to be heard and procedural right of resistance. Remedy right focuses on ascertaining where the responsibility of illegal administrative behavior lies, which is the last safeguard of administrative relative person for compensating the damage after suffering illegal administrative infringement, including inquiry by letter, right of petition, the right of complaint, the right of accusation, right of taking administrative reconsideration, and right of taking administrative proceedings. In procedural rights, this paper specially discusses on the right to be heard and procedural right of resistance. The right to be heard means that the oblige requires administrative subject to hold public hearing according to law, and to enjoy the right of information in person or entrusting others; the generic terms of right to state their cases and right to defend themselves. The right to be heard is procedural rights, the nature of infringement to the right to be heard is belonging to administrative procedural crime, exactly speaking, it is the illegal activities caused by infringing hearing procedure. And then procedural right of resistance of procedural right of resistance and administrative relative person is the detailed presentation of the theory restrict right with right in administrative activities, which is typical right of punishment apportionment and right of punishment rejection.