Judicial Review Of The Abstract Administrative Action

The abstract administrative action of judicial review, many famous scholars to the related issues, studied from theoretical basis to legal basis, from domestic and international status to China's practice, all have very detailed exposition. But I think, the society is progress, reality is also a changing, today, to the abstract administrative action of judicial review carried on another discussion, is it necessity.The abstract administrative action is administrative jurisprudence research in the field of theoretical expressions, and didn't appear in the laws and regulations, relative to the specific administrative act is put forward by an academic concepts. Abroad is not abstract administrative action of concept of administrative legislation, such as Japan, Germany's regulations order "and" internal administrative regulations "etc, the basic and our country of the abstract administrative activity connotation similar or identical. In our country, the universality of the opinion that the abstract administrative action refers to the administrative subject according to legal authority and legal procedures according to the specific object formulated and issued universally binding codes of conduct behavior, its scope includes administrative authorities formulate laws, rules, regulations and other universally binding of normative documents, etc. With the transition of government function, the strengthening of government's macro-regulation, abstract administrative action also in further strengthening, in administrative organs of the administrative activity, the specific administrative actions do possess certain proportion, but more or abstract administrative action. At present our country to the abstract administrative action regulation and review mainly prior review, namely the filing system and approval system. The abstract administrative activity contains two aspects a is administrative legislation behavior includes administrative organs to enact an administrative laws and administrative rules and regulations of the behavior,2 it is administrative authorities formulate issue other universally binding decisions and orders of the behavior, can generally called administrative normative documents.For different abstract administrative action, regulation and audit of different ways. However, either way, just administrative organs and authority at work, "anyone can be judge in his own case," review are of limited effectiveness, and judicial organs at this time often only on auxiliary function, this judicial this of right guarantee, the last line of defense cannot play its proper role. Therefore the author thinks, to the abstract administrative action on the judicial examination, is one of the indispensable constructing legal countries link.Along with our country law strategic unceasingly thoroughly, also pressured by judicial practice needs, will the abstract administrative activity into the scope of judicial examination it is urgent. Scope of accepting cases of administrative litigation, although several expansion, established at the beginning of the than administrative litigation has made great progress, but with modern China's political, economic and cultural development level, especially democracy and the rule of law construction level, human rights protection requirement, also has the very big disparity. Compared with the specific administrative act, the abstract administrative activity for its application scope, repeatedly applicable characteristics, more easily than a specific administrative act enroach on the legal rights of parties. Accordingly, the abstract administrative activity into the scope of judicial examination, is China's judicial review system, but also the inevitable trend of the development of strengthening administrative organs in accordance with the administrative the objective request. From abroad on the abstract administrative action judicature examination comparative study to see, the western countries (including administrative action of the abstract administrative action) widely accepted judicial review. Will the abstract administrative activity caused by administrative dispute into judicial surveillance and relief category, has become an important content of modern administrative law.Specifically, this paper except the full text introduction is divided into four parts:The first question to the basic concept and connotation from theoretical and practical significance on the scientific analysis and definition, and claims to the abstract administrative action is divided into execution of the abstract administrative activity, supplementary of the abstract administrative activity and autonomy of the abstract administrative activity, this as the three basis and through to their properties and the analysis of the current situation, advocates will criminal investigation regulations and administrative rules, and other abstract administrative action all into judicial review. Furthermore, this part of our country tries to figure the abstract administrative action judicature examination connotation, in order to better research abstract administrative action of judicial review system.The second problem is inspected the main countries of Anglo-American law system (Great Britain, USA) and civil law countries (Germany,France) judicial review of system model is introduced, the system of these countries to the abstract administrative action judicial review system of examination subjects, review, and the review standard, results of the review, aim to be our country architecture abstract administrative action judicial review system provides overseas beneficial successful practice, and draw suit for China national beneficial experience.The third question through the theory and practice of China to analyze the current situation, expounds the abstract administrative action judicature examination theoretical basis, mainly including the separation of theory, a last-ditch theory, litigation maximization theory in establishing the abstract administrative action judicial review system the necessity and feasibility of the proposed own view.The fourth question is aimed at China's actual situation, proposed our country to the abstract administrative action relative countermeasures of judicial review system, namely, clear the people's court to the abstract administrative action of examination scope, examination way, jurisdiction system, the parties, the system, as well as examination standard and effectiveness, there is a definite administrative subject abstract administrative action of judicial review should bear the legal responsibility.The abstract administrative action as administrative subject exercise their power of a form of its legitimacy on the judicial examination is decentralization restricting principle concrete manifestation, also judicial power supervision and restraint of executive power important ways. Will the abstract administrative activity into the scope of judicial examination, establishment conforms to China's national conditions of the abstract administrative action judicature examination system, it is fully realize the administrative subject administration according to law, to protect the legitimate rights and interests of the exorbitance request inevitably. This paper--to safeguard human rights, the construction harmonious society for fundamental key and starting point, the time closely current legal and political construction, the hope can be in the current new breakthrough and significance.