On The Administrative Action Not Valid And Invalid

"Law of the People's Republic of China on Administrative Penalty" and "The Supreme People's Court's interpretation on a number of issues about the Administrative Litigation Law",both have appeared provisions on"untenable administrative act",But the educational world presents the big difference of this stipulation's understanding.This research starts from the definition of administrative act,through the review of the definition of administrative act,come to the point that the differences and conflicts on definition of administrative act present the profound reason of different understanding.Through the review and reflection on the theory about "tenable administrative act",we thought that the tenable administrative act should be judged as the existence of the facts,only and the provisions of the "untenable administrative act" in the legislation should be judged as invalid administrative act,not including still immature act at operation.The first part of the ChapterⅠprobes into different understanding of of the "untenable administrative act" provided in the legislation.The second part begins from the administrative action definition, through the analysis of difference definition to the administrative act, come to the point that the fuzzy and uncertainty in the connotation and extension of the definition of administrative act,is a proud reason for different understanding between the "untenable" and "invalid" administrative act,because the route chosen of different definition will inevitably lead to understanding of the different connotations of the tenable administrative act.In the third,fourth part after detailed review,re-considerate theory of abroad and countryside about tenable administrative act,come to the point that the administrative act tenable connotation should be the administrative fact whether exists,namely,if administrative action's fact exists,the administrative action is tenable,does not need take the legal effect as the important document.The administrative act tenable may defined as"authorized administrative subject,exercises the administrative authority,by taking or not the achievement way,expressed to counterpart that certain meaning expresses and be learned for the counterpart".ChapterⅡon the combination of the theoretical research,as well as the provisions of our legislation,come to the point that the "untenable administrative act" provided by "Law of the People's Republic of China on Administrative Penalty" and the provisions of the "Interpretation" of Article 57,paragraph 2 should be subjected to different interpretations, the forth is because of there were serious illegal of administrative punishment procedures,namely,the existence of major and obvious flaws, The latter is not in accordance with the elements of the tenable administrative act.The first part is on the principle of mature act theory,based on the stage of maturity and the principles of theory,come to the piont that still immature act at operation should not be included in "untenable administrative act".The second part probes into the litigation practice in many civil and criminal proceedings related to the validity or legality of the preliminary issues.As there no promulgation of not confirm invalid ruling administrative proceedings before "Interpretation" it is result in the administrative act will be invalid to withdraw recognition and application of the different judgments,it is judicial practice makes" Interpretation" provide "untenable administrative act" legislative language.ChapterⅢ,the first and second parts probe into the theory of the invalid administrative act,focuses on the concept of administrative acts invalid connotation,which should be three-pronged approach to grasp.The third and the four parts probe into the basis of the invalid administrative act theory.The third part is on the short-term effectiveness of the validity,if accord the Passive resistance with the theory of counterpart's right to resistance,Enforceable Force still exists,the invalid administrative act may still be enforceable.Counterpart's right to resistance under such circumstances is significant,not only counterpart, but also the others have the fight to request to declare invalid administrative act.The section also makes detailed introduction of the civil law countries of the establishment of the system of invalidity an important theoretical basis.The fourth Part introduced one of the theoretical basis of the counterpart's fight to resistance,analyses the political and legal sense right to resistance.Focuses on the predicament of counterpart's right to resistance.The fifth part for criterion of invalid administrative act,including general criterion and explicit details of the other criterion,criterion of invalid administrative act is the most difficulty of counterpart's right to resistance and invalid administrative act.