On Administrative Counterpart's Right Of Resistance

It is normal in administrative course for administrative counterpart to obey and to cooperate with the administrative act which is made by administrative organ. However, not all the specific administrative acts are legitimate, and even sometimes such administrative acts defy the law. In this situation, legitimate rights and interests of administrative counterpart may be damaged. Therefore, it is inevitable to reject specific administrative act under some special circumstances.The legal status of administrative counterpart has been improving with the elevation of level of democratization. Additionally, the change is inseparable from increase of the administrative counterpart's awareness of rights. In such background, the administrative counterpart's right of resistance has caused wide public concern in academia. The administrative counterpart's right of resistance, which is vested in administrative counterpart, is a right to disobey void administrative act in administrative courses. As an important procedural right, administrative counterpart's right of resistance is based on the theories of limited assumed legitimacy and void administrative act. Administrative counterpart's right of resistance has important value and significance, and has been recognized by laws and regulations preliminarily in our country. However, the actual exercise of this procedural right is still being confronted with numerous difficulties.On the basis of referring to ideas and results of previous studies, the article is divided into four parts to simply study administrative counterpart's right of resistance.In the first part of the thesis, administrative counterpart's right of resistance is introduced naturally after reviewing the context of the evolution of the administrative counterpart's right. In the following content, the origin of the administrative counterpart's right of resistance is briefly analyzed before that the meaning, characteristics and theoretical basis of the right are defined, which is in order to highlight the importance of security of this significant procedural right.Actual difficulties in the exercise of the administrative counterpart's right of resistance can be found by analyzing in the second part of the article. Specifically, there is no clear definition of the nature of this important procedural right, and the traditional theory of full assumed legitimacy constitutes a challenge for this right. The criteria of void administrative act are blurred. Furthermore, the administrative counterpart may worry about the possible adverse legal consequences caused by improper exercising of the right.In the third part of the thesis, the value of administrative counterpart's right of resistance is discussed at the beginning. Specifically, administrative counterpart's right of resistance embodies values of justice, human rights and the rule of law. It is significant to consummate the administrative counterpart's right of resistance. Perfecting the related system of this procedural right can promote administration according to law, and can contribute to protecting the legitimate rights and interests of administrative counterpart, moreover, it can also restrain and supervise the practice of administrative power as well as compensate the disadvantages of traditional relieve measures.In the last part of the paper, some suggestions which may conduce to the improvement of related system are offered on the basis of referring to foreign theoretical studies. Theories of limited assumed legitimacy and void administrative act of continental law system, especially studies of Germany, Japan and other countries, have great reference values.