Abstract Administrative Acts Of Judicial Review Of Constitutional Analysis

The enlarging executive power plays an important role in the modern society: it brings about a great advance in the development of society and safeguards the order of the society. But as a power, it has the feature of infringment on citizen's rights and freedom on many occasions. In order to protect the citizen's rights and freedom, the control to the executive power becomes more and more necessary in the modern society. According to the constitutionalism, the control to the executive power through the judicial review of the judicial power is the most available and powerful way in the all supervisory systems. In the contemporary China, the legalsupervisory system of the concrete administrative action--oneof the executive actions is rather perfect, but the control systemto the other action--the abstract action is rather weak.. However,the abstract action plays an important role in the administration and has the substantive effect on the rights of the citizen more than the concrete actions. And in the practical administration, the abstract action becomes the course of the power of abuse and it infringes on the rights of the citizen on many occasions. The author tries to put forward the view that the abstract action should be under the control of the judicial review of the judicial power through the analysis of the nature of the judiciary and the effect of the judicial review.The thesis consists of three parts besides the preface and the postscript, about 60 000 words.In the preface, the author points out the main purpose of thethesis. In the practical legislation of China, the judicial review is very limited and the control to the abstract action is removed of the scope of the judicial power. The author sets forth her own view to establish the perfect system of the judicial review that the abstract action should be controlled by the judiciary .In the first part, the author seeks to define the premise of the view through the analysis of the constitutionalism. The author analyses the essence of constitutionalism and draws a conclusion that the realization of constitutionalism depend on the "limitation of the government ". The key of the limited government demands that the powers of government should be divided and balanced, and the powers exercise under the rule of law. The executive power is the most aggreesive one and it is in the dominant position in all state powers. It is more necessary to be controlled by the other powers outside it, especially be controlled by judiciary.The second part is 'the rational analysis of the abstract action' . The author tries to study the nature of the abstract action and draws that this kind of action has the common nature of the legislature and the executive. The abstract action is an effective complement of the state legislature and an important way in the administration. The rules made by the abstract actions dominant the administration and are the legal basis of the concrete actions. However many executive branches abuse the power through abstract actions and the legitimate rights of citizen are aggrieved on account of the abuse of the executive power. The abstract actions more influence on the right and freedom of citizen than the concrete actions.In the third part, the author defines the legitimation of the judicial review to the abstract action. The author analyses the experience of constitutionalism of typic foreign countries and the defects of the devised control system to the abstract actions in China, and deems that it is necessary to establish the system of judicial review to the abstract action . At the sametime, the author further probes into the theoretical basis and the legal basis, and expresses his own ideas of the principles, the bodies and contents of the judicial review to the abstract actions in the end of the thesis.