Research On The Administrative Act In The Fact

The existing Administrative Procedure Law stipulates that the scope of administrative proceedings resumption of the case is the specific administrative act. The administrative system of compensation stipulated in "the State Compensation Law" has expanded the scope of the case of administrative proceedings, which makes it applicable not only limited to the specific administrative act, but also includes other Administrative actions, that is, the administrative act in the fact.In the current educational circles of the administrative law, the fundamental differences exist in the confirmation of the concept of the administrative act in the fact, as well as the concept of whether the scope of judicial review the Court.Some scholars believe that the act is a fact that the Chief Executive should not set to change or eliminate the administrative law for the purpose of the relationship, a kind of administrative functions, which has the purpose or meaning that is not to create, change or eliminate some administrative legal relationship. In essence, the administrative act in the fact do not have the intended effect of a causal relationship between the legal nature of the act itself.Some scholars even believe that the administrative act in the fact is a kind of executive staff positions in the activities of individual violations.In this paper, the usage of a comparative analysis of empirical research, case studies, text analysis, logical reasoning, and so on comprehensive research methods could be found . And the author tried to analyze from different angles, through acts of civil law and administrative law, administrative acts and the fact that the specific administrative act of theoretical comparison, as well as Foreign legal theory and practice, the fact that the roles of the executive acts of the connotation and extension to explore the fact that the executive acts relief channel.The content:The first part is the introduction of the problem. The author, who cited the judicial practice of the specific case for the introduction, analyzed the administrative act through the trials encountered and believed that the scope of acceptance of the administrative litigation, the Administrative Procedure Law, the State Compensation Law and related judicial interpretations of the provisions of is inconsistent, therefore, the author tried to explore another administrative act beyond the specific administrative act, that is, the administrative act in the fact, and to search for the concept and the relief as well as the same way. The second part is the administrative act in the fact and the civil act in the fact. Since the China's administrative law roots in the civil law, it is necessary to study the civil law theory before the research of administrative actions.First of all, the civil act theory. Civil law theory as a more mature legal system, has divided the civil act into two parts, that is legal acts and acts of the fact, and that the main difference.In addition, the important difference between the legal actions and the fact is that the act point to the target. Legal actions usually points to the main point, and the fact that behavior usually points to the object.Secondly, the difference between them is the civil act in the fact is conduct by an objective person, rather than the meaning of legal effect. The theory of administrative acts and acts of civil law and civil actions is obviously different.The third part is the administrative act in the fact and the specific administrative act. The specific administrative act is the most important acts of an administrative act. Second, there are many difference compared with specific acts and the administrative act in the fact, including the force of law, ruling methods. The author believed that the scope of the administrative act in the fact shall not include a specific administrative act of infringement caused, the a specific administrative act of a process or as a stage, nor the executive staff positions outside the act Purely personal conduct.The fourth part consists of the administrative acts of the fact that the concept of characteristics and types. In the comparative analysis, the author analyzed the administrative act in the fact. First of all, the major theoretical analysis of the foreign development, the author focused on the administrative birth place Germany, France, and other civil law theory. Second, the authors analyzed it with different methods such as the fact that the concept of behavior, characteristics and categories set out in detail. The fact that the executive acts and acts of civil law, the specific administrative act, as well as analysis of the difference between the concept from Germany, France, Japan, and China's Taiwan and the mainland Chinese scholars on the fact that the executive acts defined in the author set out on the basis proposed, the fact that the Chief Can be defined as acts that have the right to administrative institutions and their staff not to implement the external force of law, but in fact the Chief of the relative rights and obligations of people affected to a certain degree of administrative acts. Thirdly, the fact that the executive acts in the technical, social, ecological and economic areas of rapid development, has much diverse manifestations. Scholars have classified the executive acts from different points of view, indeed, the fact that acts can be divided into many types from different points of view, in the form of acts of this article from the point of view, including the day-to-day construction, maintenance, implementation and circular, the Chief of the informal behavior, violence, and other violations.The fifth part consists of the legislative proposals and the suggestion. The administrative act in the fact will affect the other relative's interest. There should be relief on the damage, if the executive acts have caused damages to the administrative relatives, it should provide judicial relief for citizens, legal persons or other organizations.At the end of the article, first of all, the author analyzed the current exercise of the judicial relief. The problem is the narrow scope of the case, and the legislative process. Secondly, the author attempted to explore the judicial relief from the expansion of administrative proceedings by the scope of the case and liabilities of the countries. Meanwhile, the author proposed of increasing the compensation items in the State Compensation Law and then constitute the national compensation law.