Research On Administrative Precedent System | Posted on:2010-10-31 | Degree:Master | Type:Thesis | Country:China | Candidate:F F Bo | Full Text:PDF | GTID:2166360275960395 | Subject:Constitution and Administrative Law | Abstract/Summary: | PDF Full Text Request | In the modern society,with the development of economy and society,the administrative power have the trend of the irrational expansion;the executive power has extended to every comer of the society.How to reasonably define the border between administrative power and civil rights so that the administrative rights operate relatively stably and safely,has become an important part of the rule of administrative law.the Administration precedent which is rooted in the profound theories of empirical realities and judicial practice,not only records accurately the evolution of the administrative law context,but also interprets the true meaning of administrative law better,so it plays an essential role in the construction of administrative law.There is a unique phenomena in the field of administrative law:to some extent, administrative precedent systems are growing,in both Anglo-American laws system countries and Mainland countries where it has a tradition of statute law This stems from the combination of case law,the executive power and the modern rule of law.To some extent,they are applicable to all.The complexity of the administration service requires that the executive power should have a strong adaptability and greater discretionary.The statute law with high stability is very difficult to be maintained at a reasonable level with the need of administrative law.The conflicts between administrative law and the administrative rights are bound to lead to the tense relationship between the executive power and the modern.The generalization of the statute law inevitably endows the judges with free discretion,and it increases the risk of "different co-contractors" and does harm to fairness and justice goal.This will certainly bring about the tense relationship between judicial power and modern law,as an effective method to regulate the social relations,the case law has the feature of high adaptability which enables it to keep pace with the development of administrative law and then regulate and guide it.Its certainty can make up for statue law' vulnerabilities and regulate the discretionary power of judges,Then achieve the goal of "co-contractors","equality before the law".The case law achieved the law value and also won space for their own living.From 1986,with the requirement of our country's legal system construction and the deep research into the law,our country's legal field carry out a fierce debate about the introduction of Chinese jurisprudence system,Most of these articles advocated learning and introducing case,but has not yet finalized.Because of the unique value of the administrative precedent system,we advocate to construct an administrative precedent system which conforms to Chinese real situations,based on the use of the foreign advanced experience for their reference.The main idea of this article is as follows:based on the certainty and adaptability of administrative precedent system,this paper discusses the relationship between administrative precedent system and administrative law and the necessity to set up our country's own administrative precedent system.Two targets of our administrative precedent system as well as two administrative classificationsThis paper has five parts,including the introduction and four chapters.The following are the main framework of this article:The first part is the introduction which analyzes the research background,research situations,research aims and significance.The second part introduced the basic theory of administrative precedent system and its meaning to the law of law.The concept of the precedent law is made clear by means of comparing with the statue law and the function form of the justice explanation.The following is that the case law can achieve better legal certainty and adaptability,which make the precedent to be the rule of law.Part 3 is the analysis of the foreign countries' administrative precedent system.Through the review of the establishment,the regulation of the administrative precedent system in the United Kingdom,the United States,French,We can see that the rule of law in the administration of the country can not be separated from a highly developed administration precedent system.At the same time,we have also seen that administration precedent system was set up in the country with profound historical and culture of the law factors,and we can not blindly transplant mechanically and drawing the nation regardless of the conditions.In addition,China's current law system was well received by the Mainland law and relationship of the NPC and the Court have been similar to that of the United Kingdom and France.In The United Kingdom "legislation first" constitutional system,there still have developed the" judge made law",France,as traditional statutory national,administrative precedent system is operating in the administrative areas,therefore,their successful experiences of administrative precedent system have been a very good reference and inspiration.Part 4 is the analys about the need of setting up the administrative precedent system in our country,and its functional analysis of the rule of law.This article analyzed the conflict of the Uncertainty of the administrative power and the limited content of administrative statutes, and the contradictions of the Administration events'volatility and the stability of administrative statutes.so we could achieve the ConclusionThat the adaptability of the administrative precedent is in line with the need of Administration the rule of law.At the same time,it is from the aspect that the case administration system can effectively prevent and control the administrative discretion, administrative law jurisprudence system will be able to apply the principle of judicial practice, and it is able to apply uniform legal standards for the administration to clarify the point of view that the Specific and the certainty of the administrative precedent fits the need of Administration the rule of law.And then it summed up many typical significance cases in Chinese judicial practice.These typical cases compensate the shortage of statute law,declare new laws and make clear the law's specific criteria and guide our administrative adjudication work in practice and then promote the development of the administrative law.The fifth part is some ideas about the of the administrative precedent in our country. First of all,it pointed out that the case does not have effect,the existing judicial interpretations is very difficult to play the expected role because of its unscientific in form and irregularities in function.It was essential to set up a binding administrative precedent system. However,it does not work to copy completely West Country's case-law mode because of the existing institutional,legal traditions and the impact of the actual situationSo we have to set up the administrative precedent system and it should be defined as a form of judicial interpretation.Finally,it is the discussion about the classification of the main mechanism,revocation,supervision and some ideas of the administrative precedent system.
| Keywords/Search Tags: | Case Law, Administrative Precedent, Executive Power, The Rule Of Law | PDF Full Text Request | Related items |
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