Research On Administrative Factual Action

Administrative factual action is an important conception in the theory of administrative law, and it is also the important component part of government's administrative actions at the same time. In this paper, the meaning, characteristics and classification of administrative factual action are analyzed through the comparative study on the theory of administrative factual actions at home and abroad, and analysis on the relief for violation of administrative factual action is highlighted by using actual cases, and structure and perfection for the relief system of administrative factual action are initially investigated through combing the current situation of judicial practice in our country, especially the relief application of Administrative Procedure Law and National Compensation Law for administrative factual action.Chapter one is the general theory concerning administrative factual action. The theory of administrative factual action derives from Germany, and it is developed along with the further expansion of administrative power. There are mainly two kinds of points of view to define administrative factual action in the field of administrative law: 1. Theory of non-declaration of intention. Administrative legal action and administrative factual action are differentiated from the aspect that whether the administrative act possesses the element of declaration of intention by the scholars who hold the theory. 2. Theory of legal effect. In the definition, whether the action causes legal effects or not is taken as the standard to judge administrative factual action. The author considers that the meanings of declaration of intention and legal effect should be investigated to correctly define the connotation of administrative factual action. Based on making clear the above two conceptions, administrative factual action is defined as follows by the author: Administrative factual action refers to the administrative act without the intention to establish, modify and cancel administrative legal relation as well as without the occurrence of legal effect implemented by administrative subjects. Administrative factual action has the following characteristics: I. Administrative factual action is the behavior of authority nature implemented by administrative subjects. II. Administrative factual action is the administrative act which doesn't take the generation, modification or cancellation of administrative legal relation as purpose. III. Administrative factual action is the administrative act which doesn't cause legal effects. IV. Administrative factual action probably causes legal consequences.Administrative factual action is further analyzed in Chapter two. Administrative factual action can be divided into behavior of daily construction maintenance, behavior of consulting service, tort related to executive positions, behavior of administrative guidance and behavior of administrative execution. While administrative compulsory measure, behavior of reprocessing, opinion internal administrative organ, behavior of administrative proceedings are not administrative factual action. The main distinction between administrative factual action and administrative legal action is that what is caused by administrative factual action is legal consequence and what is caused by administrative legal action is legal effect. The main distinction between administrative factual action and quasi-administrative act is that when quasi-administrative act is performed by administrative organ, the rights and obligations of citizens are not directly affected, but legal effects probably are caused indirectly. Quasi-administrative act is aimed at pursuing certain administrative law effects, although the effects is indirect, it doesn't interfere with the consistency of behaviors'objective effect and the subjective pursuit of doer, such as the acceptance behavior of administrative organ, while administrative factual action is not aimed at pursuing the generation of legal effect. The difference between administrative factual action and false administrative act is that administrative factual action has the characteristic of authority nature, while false administrative act doesn't have the characteristic of authority nature.The relief and perfection for administrative factual action are discussed in chapter three. Although administrative factual action is not conducted to process the rights and obligations of citizens, it still probably causes practical damages for the lawful rights of citizens, such as personal rights, property rights etc., so it is necessary to research on the relief for administrative factual action. Administrative factual action is inevitable to be restricted by legal principles for it is the behavior made by administrative subjects during discharging duties. Administrative factual action must follow the requirements of Doctrine of Law Priority, Doctrine of Legal Reservation, Principle of Proportionality, Principle of Good Faith, Trust-Protection Principle and Principle for Protecting Civil Rights and Interests. It is specified to only accept and hear specific administrative act in our country's Administrative Reconsideration Law and Administrative Procedure Law, although the scope of accepting cases is modified as administrative act by Interpretations of the Supreme People's Court Concerning Several Problems in the Application of'Administrative Procedure Law of the People's Republic of China', the controversy is still usually aroused for how to relieve administrative factual action in practice. The author considers that it mainly can be commenced from the following several aspects for perfecting the relief ways of administrative factual action: 1. Specific administrative act stated in Administrative Reconsideration Law and Administrative Procedure Law should be amended to administrative act. 2. The extent of compensation of National Compensation Law should be expanded. 3. Administrative Compensation Law should be drawn up so as to perfect administrative compensation mechanism. Under the existing legal framework, examination main points of people's court for administrative factual action are as follows: 1. Firstly, it should be investigated that whether it is within the scope of accepting cases of the administrative judgment of people's court. 2. It should be investigated that whether the plaintiff or the defendant of case agrees with the qualifications for lawsuit subject stated by law. 3. It should be investigated that whether the prosecution exceeds the term to sue. 4. It should be investigated that whether the prosecution experiences necessary procedures. 5. The fact of case should be investigated thoroughly. 6. The legality of administrative factual action should be investigated. The difficult points for hearing administrative factual action lies in: 1. The investigation for whether administrative factual action is actionable or not. Under many situations, the nature of administrative act is not fast and hard, and it needs the free appreciation of judge. When we hear this kind of case, the principle should be followed by us is that scope of accepting cases for administrative proceedings should be expanded from the angle of protecting the rights of persons involved. 2. The investigation for burden of proof of cases of administrative factual action. Compensation case of administrative factual action is complicated, so it is very difficult to make a unified provision for judging which party should undertake the burden of proof of causal relation, it should be decided by judge according to the specific situations of cases. 3. The judgment for the functions of administrative factual action in injury consequences. Because there is a great diversity of reasons for leading to injury, and the occurrence of injury consequence may also be caused by many reasons together. Various reasons interact with each other, so it is very difficult to distinguish the exact proportion used by administrative factual action in it. The amount of responsibility of administrative organ should be accurately judged by us according to specific cases. In a word, problems concerning the conception, relief etc. of administrative factual action are investigated in the paper by following the logical organization which is from raising a problem, analyzing the problem to solving the problem.