Judicial Relief For Administrative Guidance In China

Administrative guidance has increasingly been used in various areas, as the acceleration of China's market economy and legal administration. The activity of both the government and administrative counterpart is mobilized by its unique flexibility and softness, which is the result of effectively improving the administrative efficiency. On the other hand due to the deficiencies of administrative guide such as greater flexibility and difficulty to control in practice, a lot of violations have occurred which impede the further presentation of its active role. Our problem in practice are mainly shown in unscientific decision-making, opaque behavior, converting to executive order easily, too much discretion and fuzzy responsibility, all of which infringe the legal rights of the administrative counterpart in various degrees.The legislation lag of the administrative guidance is the main reason for its violation exists, in which the conservative judicial review should be a more direct factor. Because of the theoretical controversy on the definition of administrative guidance an effective judicial relief system has not yet formed in our country although it is a powerful way to protect rights. According to the traditional principle of administrative law, the administrative guidance is not considered as an administrative action. This makes the administrative guidance out of the scope of judicial review. But the author argues that this definition is open to question. The implementation and tangible results of administrative guidance are based on executive power. In other words the government could not guide for the counterpart without legal authority. And an indirect legal relationship can be established between the government and the counterpart if the guide is accepted.Judicial relief of administrative guidance is not only a theoretical issue but a real problem. Widespread practice of administrative guidance makes it even more necessary. It is in line with the trend of modern administrative law and the only way to mature administrative guidance system. "There is damage there must be relief," which is also the basic requirement of modern rule of law. In China, the lack of law in the procedure and relief led to more inappropriate, illegal, and mandatory administrative guidance existing in practice. While vigorously developing the socialist market economy and the building a harmonious society, China is facing the needs of reconstruction and improvement for administrative guidance system, in which the establishment of judicial relief system plays an irreplaceable role. Then, based on the actual situation in China, how to establish the system of judicial relief as soon as possible is such an urgent issue.In the long run, we must give administrative guidance and its judicial relief specific legislation which is in line with the inevitable trend of administrative law requirements. As an exercise of executive power, there must be a legal basis for administrative guidance, to make the administrative authorities fulfill their obligations and responsibilities. But for the present situation, the more realistic, urgent way is to modify existing laws and regulations or by judicial interpretation so as to make administrative guidance explicitly included within the scope of judicial relief. We also need expand the way of relief through system innovation. There should be less controversy at the theoretical level on judicial relief of administrative guidance, but "putting aside disputes and first specification". This is a gradually established and perfected process.We need to solve many problems to establish and improve the system of judicial relief, including the scope of administrative litigation, the choice of litigation solutions, legal accountability, and the usage of other relief measures and so on. This paper gives these questions detailed analysis and proposes some useful suggestions in order to provide theoretical support for establishing and improving the relief system of administrative guidance.First, not all administrative guidance can be given administrative lawsuit. Abstract guidance involves in our political system and usually is reviewed incidentally by administrative review. And in the specific guidance, only the illegal, part of inappropriate, alienated ones can bring an administrative lawsuit. If there are not any defects in the guidance and the damage is caused by the relative's own accident, we can not give this situation an administrative lawsuit. Secondly, we argue that the type of litigation for administrative guidance does not contain complaint of change. The change means that the intervention of judicial power against executive power. And the fact is that the people's court can not replace the administrative organs to implement administrative act. Moreover, because the administrative guidance itself is a professional action, there is inherent in this regard the Court has many deficiencies to change previous act.On the legal responsibility, we should consider the special nature of administrative guidance, because the occurrence of the damage may also be at fault of the administrative counterpart. So we should adopt the principle of shared responsibility. The responsibility between the government and the counterpart can be divided into two types: one is the disciplinary responsibilities, such as reprimand and administrative penalty; the other is remedial responsibilities, such as executive compensation, an apology and so on. These two types are distributed legitimately between the government and the counterpart,not concentrated in one party.In addition, judicial relief is only one type for administrative guidance. In order to better protect the legitimate rights and ensure the correct implementation of administrative guidance, we need to continuously expand and enrich the relief channel, including establishing and improving the system of administrative review, executive compensation and so on. Together with the judicial relief, these systems correct the negative effects of administrative guidance from a variety of angles.