Aministrative Real Act And The Relief

Administrative action with our daily lives the closest, has great influence on our lives, with the economic and social development, also will change the functions of government, increasingly broad range of government functions, affecting our lives. The service functions as the government continues to increase, Administrative Behavior Compared to the past, there have been more and more in our lives, from the paved street located Road, clearing obstacles to administrative guidance, to take temporary coercion and so on. But in administrative circles, has yet to act on the administrative nature of the fact that there is a unified understanding of even the most basic definition is a matter of opinion. Administrative Behavior occur more frequently, of course, may cause damage to people’s rights. However, theorists have not adequately research the law does not make provision. Thus, in such a "right time" to study the administrative acts of infringement and the fact that relief is necessary, has important practical significance. The author of three years of study in administrative behavior was related to the fact that research in this study with their knowledge of the concept of Administrative Behavior, tort relief and improvement of the legal system and other issues to be explored.The concept of Administrative Behavior, by comparison with the related concepts and the existing theoretical results of inductive analysis, I believe that the fact that the administrative act could be interpreted as:the administrative body to implement the course of their duties not to have effect for the purpose of administrative law, but are directly or indirectly affect the relative rights and obligations of the administrative actThe concept of administrative acts to define the facts, the author also analyzes the characteristics of Administrative Behavior, strengthening of administrative acts of the understanding of the facts. I think the fact that the administrative act has the following characteristics:authority of, a legal sense, have no legal effect, diversity.By understanding the fact that scholars of the administrative acts of classification, we act for the fact that the scope of the executive to have a general understanding of the fact that our study of administrative behavior provides a study will help us to the fact that each act of administrative analysis, however, the fact that administrative classification of the acts there are still some problems, mainly as follows:First, the form of classification of behavior, there has been undistributed situationTaking into account the fact that acts of defining the concept of administrative difficulties, many scholars engaged in the practice of the style category, the fact that due to administrative behavior forms, and with the continuous development of social practice, the types of administrative acts of the fact that more and more, the result is behavior can not be exhaustive list of scholars of all styles, so the concept is not sufficiently comprehensive classification.Second, some categories with multiple standards is suspect. Linteng He According to results based on a law into effect of the fact that behavior, a fact the result of the damage behavior and the fact that no rights are infringed upon the fact that behavior. In fact, in this category, there are three criteria, that is not effective, whether in fact the damage results, and whether the rights are infringed upon, the use of multiple standards, the result is the behavior of inclusion and overlap each other.Third, whether the conduct was coercive power as the standard, the fact that behavior is divided into administrative and non-power behavior of power, with the result of inconsistent classification criteria and classification of defects. If the fact whether the conduct was coercive power as the standard classification of the behavior of the results should be mandatory and non-mandatory behavior. If it has the power as the standard, in order to generate power to conduct and behavior of non-power points. As noted earlier scholars Yan Bao on Administrative Behavior Seoul to power as the standard is divided into acts of power and non-power, but, in fact, to see if the behavior is to divide the force, undoubtedly, is ambiguous at the same time, there is no doubt that he that power is equivalent to the force, in fact, the force of power and are not necessarily linked.There are also some criteria for the classification, such as internal behavior and external behavior of the points, I believe, although such standards can avoid embracing issues, and the standard single does not cause confusion, but there is no such division of practical significance. For this reason, the fact that this behavior is divided into administrative and implementation of cognitive behavioral acts that two kinds:that of cognitive behavior, is the administrative body to perform their duties do not directly or indirectly affect the relative rights obligations for the purpose of that act. Including the release of information, administrative guidance, does not affect the relative rights and obligations of the reply, notice, plans and other guidance that behavior. The act, is the administrative body in the administrative process of flying the fact that behavior. Include:public facilities construction and maintenance of public behavior, the behavior of the implementation of the behavior of administrative law, real-time enforcement, administrative checks, and other implementation actions. Cognitive behavior and the fact that the main difference between behavior can be considered from the following aspects:First, that the former is cognitive in nature, is the administrative body or subjective understanding of things is an objective description of the situation, the purpose is to make people aware of the situation encourage or discourage people to do certain things, but the latter is not a perception that nature. Second, the former in the service, and no mandatory participation, such as administrative guidance, while the latter is to fulfill the duties of the act, often accompanied by mandatory participation, such as immediate coercion.Administrative Behavior constitute infringement, the author into four elements, namely, the main elements, behavioral elements, the subjective element, the elements of causation. The fact that acts of infringement in the administrative responsibility principle, the principle of fault liability should be based, supplemented by the principle of liability without fault. Causal relationship is more important part. Infringement of China’s administrative law scholars for a causal relationship are basically three perspectives:The first view is that the causal relationship between the administrative infringement should be a direct causal relationship. Behavior does not require referring to is the result of the inevitable or fundamental reasons, but simply lead to a closer results to the cause. The correlation during the procedure, the judge is totally dependent on the specific circumstances of the case according to discretion."The second view is that the causal relationship between the administrative tort liability should be the causal relationship, that the link between behavior and the results should be the necessary link. This result will be an act and not caused by other acts. Conversely, if With this act, is bound to produce this result. Between behavior and results, in the absence of such close ties, cause and effect relationship can not exist.The third view is that China’s administrative tort liability should be quite a causal relationship between cause and effect relationship, that the administrative organs and their staff as long as the offense is the main reason for the damage occurred, the state should bear tort liability.For the three point argument, I agree with a third view. Direct causal relationship between behavior and the results emphasize the causal relationship can be certain that this causal relationship requires more loosely, any judgments more likely, it would be inappropriate as a standard to determine the cause and effect relationship. Causal relationship between an executive and the results must be closely linked, this standard is too strict, we can not very well protected relative interests, the responsibility can not form an effective incentive mechanism. However, the significant causal relationship is very good balance between protecting the interests of the public interest and the relationship between the victim, but also better able to motivate the executive to perform its functions. Therefore, I believe, in our economy has developed, a sound legal system is not the case, should be used rather causal relationship.The fact that due to administrative actions as the diversity, with the Administrative Procedure Act to restrict a certain degree of difficulty, and our research is still relatively backward, there are many serious violations of the rights and interests of the executive relative to Administrative Behavior, China for the damage of the executive relative rights and interests of the establishment of a system of administrative tort remedies, including petitioning relief, relief for administrative reconsideration, administrative litigation relief, state compensation benefits, executive compensation and other relief, although each of the relief system has some advantages, relative to the protection of the rights and interests play an important role, but there are still many shortcomings. I act for the fact that China’s administrative system deficiencies, the fact that acts of infringement of administrative relief system improvement recommendations.