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Discussion On The Rights To Procedural Protection Owned By Administrative Counterpart

Posted on:2010-10-24Degree:MasterType:Thesis
Country:ChinaCandidate:H QuanFull Text:PDF
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The rights to procedural protection of administrative counterpart is the safeguarded measure that the administrative counterpart made under the legal permission, according to the administrative behaviours which the administrative body did against legal rules, to protect his or her legitimate rights and interests. The academia of administrative jurisprudence has already paid attention to the right gradually. But the rights to procedural protection of administrative counterpart in our country has not been perfect or well-developed, no matter its content or its remedy. Therefore, I has chosen this subject to do some research on.The full text includes four chapters.Chapter one is the basic ideas of the rights to procedural protection of administrative counterpart. There are four parts about its content.The first part is the analysis of its concept, showing that the procedural protection right is an important way in which the administrative counterpart's reality right can be safeguarded.The second part has discussed its seven primary coverages, namely, the right of information, the right of participation, the right to be heard, the right of refusal, the right of defence, the right to apply for challenge, the right to complaint, which are realizing the administrative counterpart's reality right directly, and corresponding the administrative body's procedure duty.The third part includes the legal principle theory of law basis, through which the procedural protection right can exist and develop, by discussing its theory basis, that is the justifiable defence theory, the power restriction theory, the democracy participation theory, the right procedure theory.The fourth part has discussed its practical significance, to proving the great importance of the procedural protection right in protecting the administration counterpart's legal rights and interests, maximally limiting administrative body's abuse of authority ,and restrain corruption.Chapter two has discussed the overseas present situation of the procedure protection right to administration counterpart, which includes two parts. They are the elaboration of the procedural protection right's present legislative situation in several typical mainland countries(such as Germany, France, and Japan)and Anglo-American Legal System countries(Great Britain, and America).I want to make some beneficial experience to the development of the rights to procedural protection of administrative counterpart in our country.Chapter three shows the present situation of the procedural protection right to administration counterpart in our country, which includes two parts. The first one is its legislative present situation, illustrating the existing problems through our present legislation, carrying on the summary analysis to the reasons in three aspects. The second part is its present implementation situation. By analysing three typical cases during administrative law enforcement practice, I discover the procedural problems and have carried on the analysis to the reason.Chapter four has taken up the procedural protection right's consummation, including two parts.The first part is about how to improve the principal institution of administrative procedure which including three parts.The first is the administrative hearing system. The necessity of establishing administrative hearing system, and some suggestions to consummating administrative hearing system have been discussed. The suggestion is talked about in 3 aspects, that is expanding the scope of hearing procedure, improving hearing director's system,and further perfect the examination to the hearing procedure.The second one is administrative information disclosure system. In this part the necessity to establish it and suggestion about how to consummate it have been discussed. The suggestion is elaborated in 5 aspects,which consisting of that,citizen's right to know should be stipulated in the constitution,the E-government should be well-developed, taking measures to publicize the administrative information should be written into law,the informing system should be established,the relief system should be set up and consummated.The third one is the administrative application to challenge. The necessity to establish it and suggestion about how to improve it have been discussed. The suggestion is talked about in three aspects as follows:the efficacy and legal consequences of administrative behavior should be clear, the legal requirement to withdraw should be clearly stipulated,the relative regulations about administrative challenge system should be consummated.The second part has discussed how to improve the remedy system of procedure-safeguarded right, including four sections as follows: The first one the suggestion about how to consummate administrative reconsider system,which includes expanding its scope,strengthening the independence of reconsider organization and its staff, paying more attention to guarantee it, and change the principle of "no stop implement" in the period of administrative reconsideration.The second one is the suggestion about how to consummate administrative litigation system,which is unfolded in three aspects, namely,further clarifying the document scope of "Administrative Procedure Law",further expanding the document scope of administrative proceedings,prolonging administrative proceedings' effectiveness, and paying more attention to the function of law principle in the administrative proceeding case.The third one is the suggestion about consummating state compensation, including expanding the compensation's scope and enhancing the standard of the property damage and personal harm.The fourth one is the suggestion to consummate the inquiry system, which is discussed in three aspects as follows, further expending the document scope of inquiry relief, setting up a strict legalliability investigating system, and dealing with the constructions between the inquiry system and other laws and regulations.
Keywords/Search Tags:Administrative Counterpart, Rights to Procedural Protection, Legal Right, Administrative Hearing
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