Civil Servants Of The Illegal Decision, The Order Of Disobedience

Everyone shall be bound by the law, this is the basic principle of the "Rule of Law". As the direct legal performers of national law, civil servants are bound to legal administration. Meanwhile, from the Central Government point of view, in order to ensure decisions are carried out without fail, as well as to ensure the government offices work uniformly and efficiently, the lower-level authorities should subordinate to the higher-level, so that the civil servants have to take orders from their senior officer. Thus, when there is a conflict between the law and the superior’s will, the civil-servant will be caught in a dilemma.Article No.54of the Civil Servant Law of the People’s Republic of China passed in2005, clearly states the allocation of responsibility to the lower and the higher level government authorities. This provision has not only clarified the Responsible System of the Principals of Administrative Agencies, but has also provided a legal way for lower level officers proposing opinions and suggestions to their superiors, so as to prevent damages caused from their wrong decision or order. It may be considered as an innovation and a theoretical break though in China’s legal profession regarding the requirement of obligations of the civil servants’ subordination to their superior. However, while the provision has been deeply studied, it can be found that the legislation is seriously vague and impractical. As a result, civil servants still have to face the dilemma, obeying or not obeying the superior’s illegal administrative decision. Such phenomenon in legislation and more and more law suits caused by the wrong execution of illegal administrative decision have drawn the attention of many scholars worldwide. They have come up with different academic viewpoints, such as the main four being:Absolute Obedience Theory, Absolute Non-Obedience Theory, Relative Obedience Theory, and Statement Making Theory. The third one is the mainstream.Theoretically discussing some relative issues are of great necessity and urgency, for example whether civil servants can have the power to choose or refuse a obedience of superior’s illegal administrative decision, who will be subject to the legal consequence, and what is the legal basis and standard of illegal decision. Promoting a wide discussion on such issues will help to cover the omission in our country’s legislation and improve the feasibility of practice, and that is the key sense of this essay.This paper concentrates on analyzing several concepts for the civil service and superior, administrative decision and order, illegal administrative decisions and order. And the thesis is from the four parts of the topics discussed, using semantic analysis, historical analysis and comparative analysis. The first part gives an overview of the main issues raised in the paper for definition of the concept, Chinese and foreign scholars view and the legislative attitude, mainly introducing China’s current attitude for obedience obligation of when the civil service and the issues and cases of the civil service disobey the illegal administrative decision and order.The second part means that why the civil servants does not obey the illegal administrative decision and order in theoretical analyses, mainly expounding the theoretical basis for this phenomenon. The third part uses example analysis and cases to discuss the necessary and sufficient conditions for the civil servants disobey the illegal administrative decision and order. The forth part will put forward the legislative proposals for this phenomenon.During the discussion of these topics, the author is trying to introduce the domestic popular relative theories for relations between the state and the civil service in recent years, then discusses the obligations of the civil service disobey the illegal administrative decision and order, end through the theoretical analysis and example analysis conclusion combine makes its argumentation in four parts to fill up the legislative oversight and provide theoretical direction and reference guide...