On Administrative Illegality

The paper begins with an analysis on the concept of administrative action, which is followed by a classification of administrative action—the lawful actions can be divided into administrative unlawful action and administrative unlawful action. Then, the author makes a detailed discussion on administrative unlawful action, covering the components. Academic circles have analyzed the issue, which is also summarized in the paper. Then by a comparison research and specific examples, the author analyses specific displays in administrative unlawful action. What follow are the potency of illegal administrative action and the related legal liability of administrative unlawful action. Finally the author puts forward some remedial measures.The rule of law is the core in constructing socialist harmonious society. The policy of ruling by law requires that the administrative organs and administrative civil servants must do administrative work according to law. In order to reach that goal, we have to effectively prevent the unlawful action. And for some remediable administrative unlawful action, we should spare no efforts. In the context of complex situations, there are still many problems in implementing administration according to law in our country, hence the cropping up of administrative unlawful actions. This paper, focusing on administrative unlawful action, makes a synchronized analysis on administrative unlawful action from various aspects.Administrative illegality needs administrative action. Theories on administrative action play an important role in administrative law, which can be justified by a review of the elated history in other countries. Otto Meyer, father of administrative law coming from German, once put forward the universal feature of processing specific administrative affairs after collecting typical activities by the police and the tax administrators since 1895, and pointed out concepts such as the power impact of people in power and mandatory and unilateral qualities after making an analogy to adjudication in court. He then generalized the term administrative action. After that, administrative action has been the core of the administrative law and administration. Administrative action can be generally divided into effective administrative action and invalid administrative action.In China, administrative unlawful action is invalid administrative action. Of course, it has become a well-known idea that a revocatory method is applied to administrative unlawful action. The corresponding administrative lawsuit system also regulates a relatively simple adjudicatory category based on revocation, i.e. revocation in its effectiveness. With economic development and social progress, some scholars put forward that when evaluating with the effectiveness of administrative unlawful action in China, we should model after the practice in foreign countries, i.e. revoking or invalidate administrative actions. The author holds that considering the current social situation in China, that practice is all too simple, sometimes not conducive to legal system construction in the socialist country and even in certain circumstances such a rough handling may hinder the authority of subject of administration. Furthermore, the severity of invalid administrative action is higher than revocable administrative action. China, as a country rooted in power worship, has unsound administrative system, administrative procedures, and administrative remedy channel, which makes setting up an invalid administrative action system highly relevant. Therefore, the author recommends that when handling China's administrative unlawful action, we should also consider multiple factors, before making invalid administrative action system in administrative legislation and changing the simple practices against the illegal administrative action.Of course this is not to say that we can take all the systems that denied by overseas administrative unlawful action. We should, in consideration of China's specific conditions, find a system catered to the formation of administrative unlawful action effectiveness in China. in that case, the author would like to make some points in need of attention:1. we should make a clear lists of invalid administrative action; 2. as for the illegal administrative actions, as long as they are not severe or clear, we can revoke them; so as to shrink the scope of invalid administrative action; 3. we shall make it explicit that any people are entitled to reasonably resisting the invalid administrative action, and the interested party may request relevant organs in authority to invalidate the invalid administrative action in public at any time, which is also one of the obligation s of the organs. After a comprehensive analysis of the above circumstances, we are sure to find out a system on recognizing the effectiveness of administrative unlawful action in consistent with China's socialist nature.Once administrative unlawful action is committed, we shall investigate the responsibility of the related administrative body exception. Administrative illegality liability refers to the liability due to the misconduct in wielding administrative power or in non-performance of statutory duties. It has the following characteristics:1. the liability is stipulated according to law; 2 the liability is guaranteed by national force; 3. once committed, it shall be investigated only by related state organs in authority in accordance with law; 4. the premises is the illegal behavior of the administrative body; 5. it is the administrative body that acts as the major reliability body; 6. it is a kind of comprehensive legal responsibility. Punishment can only be justified by basing itself on some principles. China has established a liability principle based on the principle of fault liability, which is divided into two stages. The first stage is external national compensation—in order to ensure the victim compensation and realize where there are rights, there are relieves, China designs the compensation by proxy rights. The administrative responsibility is confirmed on the basis of liability for fault, including risk responsibility rule system, which is also called incomplete fault liability or results responsibility. The second stage is the internal compensation claiming. In order to ensure the legitimacy of the state compensation system, we need to reallocate the responsibility concerning the harms due to the deliberate misconducts or infringement by civil servants; we should completely distinguish between the national responsibility and the responsibility owned by civil servants, where the principle of fault liability is used, which means that when the infringement of any rights occur out deliberate intention or negligence, the accused party of shall be liable for the related compensation, and then the liability of the executive body of administrative unlawful action shall be investigated. In recent years, due to the high speed development of economy and social progress, people's legal awareness has be enhanced, which makes the following practice a must: administrative bodies should operate daily businesses in accordance with the law, taking the law as the premise, and avoiding the rising of any administrative unlawful action. Meanwhile, we citizens should take up laws as the weapon to safeguard our legal rights when faced with similar infringement acts in all aspects of social life. Only through the joint efforts of all the citizens of China can we put the construction of socialist government by law to a higher level.