On The Classification Between The Specific Administrative Acts And The Abstract Administrative Acts

In China, the concepts of the specific administrative act and the abstract administrative act were initially proposed as an academic language, both borrowed from division of administrative act of French administrative law. The abstract administrative act is the act of administrative body making administrative normative documents which have general binding force, developing against non-specific objects, and the specific administrative act is the act of administrative body for a particular object. The classification standard between them initially did not bring too much attention, but as China's the promulgation of the Administrative Procedure Act, as only the specific administrative act is in the scope of the litigation and the abstract administrative acts is excluded, the standard of their classification immediate access to people's attention. Because not only in the course of practice, but also in the academic, people are difficult to reach an agreement. In the administrative action, a number of specific administrative acts are to come in the form of abstract administrative action, and a lot of administrative acts contain both specific behavior and abstract behavior, it is difficult to distinguish. Especially in judicial practice, faced with the same type of cases, the classification standard that different court accepted are not consistent, some court held that the case is the specific administrative act, the court should be dealt with; while some court held that the case is the abstract administrative act, not in the scope of the court. Therefore, it is necessary to explore the classification standard between them to unify people's understanding and the scope of judicial practice.This paper is divided into introduction, body and conclusion three parts.The introduction describes questions and topic selection of the paper, the summary of the research and literature.The body is divided into three chapters. The first chapter describes the origin of the concepts of administrative acts and the classification in the abstract and specific administrative acts. The concept of administrative act was originally founded by scholars of the French administrative law, and later German scholars introduced the concept to Germany and become legislation, Meiji Japan introduce the concept of administrative act from Germany, and later into China mainland and Taiwan regions from Japan. As the States adopting the concept of administrative act had different purposes, such as the functional model of the proceedings in France, both functional model in Germany and China's Taiwan region, and learning model in Japan, the concept of administrative acts of States are very different.This chapter describes the concept of administrative act of France, Germany, Japan, the United States, Chinese mainland and China's Taiwan region, and their classification for the specific administrative act and the abstract administrative act.The second chapter first summary the different criteria for the classification by the Chinese scholars, analyze the various viewpoints and propose their shortcomings. Classification standards in China in general have six points of view, taking reference, procedures, results as the standard, built-in function as the standard, an object of an individual character or class feature as the standard, applying object-specific, traceability, effectiveness of direct as the standard,with view of classification irregularities. The six points of view are detailed elaborated and analyzed. Next, author proposed and got classification standard between them, the meaning of "whether the object is specific", and "object specific" is also explained.The third chapter includes concept and scope of the specific administrative act and the abstract act. Specific administrative act is the act of the executive body for a specific object, including giving rights, restricting rights, confirming, adjudication and administrative remedy. Abstract administrative act is the act of administrative body against non-specific object. It includes the administrative legislation and other administrative normative documents. The chapter concludes with analysis of people's real-life controversial cases which show that the cases are whether the specific administrative acts.Conclusion part. even though studying classification standard between the specific administrative act and abstract administrative act is in order to better address the scope of administrative proceedings, but the abstract administrative acts, whether from its harmfulness or from protection of people'rights, or from the maintenance of the unity of the contents of the abstract administrative acts, it is necessary to included them in the scope of administrative proceedings. China should learn from other countries in practice, it is appropriate that the abstract administrative acts which effects under the Administrative Rules of China should be included in the scope of administrative litigation.