Research Of Legal Review Due Standards Of The Specific Administrative Acts

The fact that the legality of specific administrative act shall be subject to judicial review has became the consensus of the community. What standards should be followed on judicial review have been debated by scholars which is the problem of judicial practice. The traditional concept that the legitimacy of the specific administrative act means strict compliance with formulate law and regulation is not correct, I believed that the specific administrative act is the basic means of administration of the administrative body. In modern democracies, the legality of specific administrative act shall refer to the values which embodied in the specific administrative act to respond to people’s fundamental interests, consistent with the choice made by the people according to their own interests. The executive power has its own activity patterns, administrative target is the source of their behavior. Only respecting fully for, understanding profoundly of, using correctly of the laws of its activities, can be truly happy for the people. Comply with the law is not the nature of executive power, but the basic requirements of modern democracy and the rule of law, and people in the long struggle of the executive power from passive to active, and the real masters of the country a concrete manifestation of the people for their own interests, The executive power to limit and norms, to ensure that the efforts of executive powers and can only be exercised to achieve the interests of the people to victory. The relationship of specific administrative acts and statutes should not be absolute domination and subordination, its essence is the relationship between people’s rights and executive power, subject and object, service and the service, limit and restrict, regulate and standardize. Although under normal circumstances, the specific administrative act that made by the administrative organ shall not be contrary to the statutory rules, because of the limited awareness of the of the objective laws gives the reasonableness of the statute a relative significance, and the subject of executive power is consist of the administrative experts, its understanding of the legitimacy of power exercise is more profound than an "outsider" It has the power to enforce the law in accordance with their own correct understanding of the law. Before making the specific administrative act, the judiciary should first make sure that the laws it based on must be legal. Judicial review of the specific administrative act should take a reasonable discretion, an easing of scrutiny will lead to the abuse of executive power, and a stringent review could lead to an atrophy of the executive power. And it will damage the interests of the people. Under the domination of this idea, the author carried out research and analysis from the four aspects of the administrative body, the facts, the contents, and the program of the rules of the specific administrative act.The concept that the legitimacy of the administrative body refers to complying with the statutory requirements is outdated. The formal administrative body must also comply with the substance of the rule of law requirements. Not only the behavior of the administrative body and public servants, but also thier quality and concept must possess all times accountable to the people, and safeguard the common interests of people as the highest purpose. Without Practices Act. only based on the Organic Law, the administrative body shall not give up the jurisdiction. However, administrative body may not make specific administrative act which could prejudice the legitimate rights and interests of the administrative counterpart without Practices Act. An unauthorized behavior of the administrative body and civil servants is not always invalid; it should depend on a case by case analysis. The fact on which the administrative body makes a specific administrative act depend should be legal and supported by sufficient evidence. The behavior of investigation and gathering of evidence made by the administrative body must be restricted too. It shall not infringe the legitimate rights and interests of people. Otherwise, the evidence should not be collected as the basis of the facts of the case. If the amount of evidence and the probative force collected by the administrative body can not meet the standard of proof, the specific administrative act made by the administrative body would lost the facts it based on. The specific administrative act will be found to be invalid. As an adjustment of public and private interests, the specific administrative act made by administrative is likely to damage the private interests or public interests. To this end, we should adhere to the principle of proportionality, the smallest way damaged the interests of administrative counterpart will be selected as far as possible, and given considerable compensation to the executive damage. At the same time, the administrative body has no power to sacrifice the public interest to meet the individual’s illegal requests. Due process is not the process that the administrative body for the realization of administrative goals of any program to make the specific administrative act, but in line with the public interest of the people.Meanwhile, the value of the program itself requires that the administrative body must be in an appropriate manner to meet the administrative counterpart right to know, and realize their participation right and other procedural rights.