The Research On The Theory Of Administrative Case In China

As the development of society and the intensification of international communication, the system of law has improved gradually. Practice makes the scholars and judges of the two systems of law gradually recognize the compatibility and complementarily of the two forms of law. And then they begin to get rid of their own conservative ideas and open the door to the opposite. The legal system in our country starts relatively late, and always obey the statue law. However, basing on the large amount of experience of legislation and justice mature theory of in each branch of learning, we still face the problems of study and utilize legal precedent. Because of fewer precedent administrative case, our study on administrative case is far away from civil, criminal cases. Actually in the practice, we need the form of case as a supplementary part in precedent administrative case area. So it is essential to make study on our precedent administrative case. This paper first explain about the concept, legal status and effect of precedent administrative case to introduce the fundamental theory of precedent administrative case. And then by making study on our historical traditions, the developing situation of administrative law and the practice of justice to analyses the necessity and feasibility of construction of precedent administrative case in china. By combining with practice, the author put forward some considerations on the constructive body, constructive process and conditions. The author believe that precedent administrative case is an important part in the study area of administrative law as well as the necessary form of law in justice practice.This paper is divided into five parts.The first part analyses the fundamental theory of case which is also the base for detailed analysis of precedent administrative case. This part mainly explains the concepts of case and precedent administrative case together with the differences between administrative judgment and administrative case. The second part talks about the legal status and effect of precedent administrative case. This part makes detailed study on the legal origin and explain the legal effect of precedent administrative case from the aspects of formed reason, types and scale of effects.The third part analyses the necessity of establishing administrative case from the aspect of the defects of statutes, administrative case control administrative discretion in judicial practice, the uniform of application of law and the maintenance of judicial efficiency and fairness of our country .The fourth part analyses the feasibility of precedent administrative case in china from the historical tradition, developing situation of administrative law and justice practice.The fifth part makes detailed description of the constructive body, constructive conditions and process, the suitable guarantee of precedent administrative case in china by putting forward some considerations of the construction of precedent administrative case.