Research On The Judicial Power To Modify The Administrative Acts In Administrative Litigation

Is an expert to good expert today which the political power inflates day by day, the right safeguard and the authority restriction are the modern government by law pursue goals. Judicial power to modification is just the strongest judicial supervising means to administrative judgment power and the most effective method to relieving the citizens’ right invaded by administrative power. It’s of great importance for the development of our country’s administrative litigation system and the perfection of the administrative law theory to study the relations between judicial power to modify the administrative acts and administrative power especially the administrative discretionary power. The author, on the basis of the predecessor and colleague research, makes clear of the implication of judicial power to modify the administrative acts, analyses the derivation process of judicial power to modify the administrative acts in and aboard. Further more, the author analyses the necessity and property to authorize judicial power to modify the administrative acts, and puts forward a series of opinions and measures on how to perfect the scope of application of judicial power to modify the administrative acts in our country, so as to give some reference for the legal construction of our country’s administration. This thesis is made up of four parts.The first chapter makes clear of the implication of judicial power to modify the administrative acts, Including the development process of the source and concept, the argument about the judicial power to modify administrative acts. judicial power to modify the administrative acts rose and goes parallel with administrative discretionary power The transition from free capitalistic country to modern welfare country declared the widening way of administrative discretionary power and deduced the derivation process of judicial power to modify the administrative acts. Judicial power to modify the administrative acts in administrative litigation is an important part of judicial discretionary power and the most prominent expression of exercising judicial discretionary power by judge. judicial power to modify the administrative acts contains the following meaning:Firstly, the essence of judicial power to modify the administrative acts is a kind of judicial discretionary power to determine administrative acts, It has the following several features:the first, judicial power to modify the administrative acts is judicial power of judge endowed by administrative law; the second, judicial power to modify the administrative acts is judicial preference. the third, judicial power to modify the administrative acts is judicial power limited and controlled by law. Secondly, judicial power to modify the administrative acts is unity of legal review and reasonable review. Reasonable review is usually included by legal Review, legal review is the basis and premise of reasonable review. Unreason-ability reaching some degree is illegibility, legal review and reasonable review is identical in essence and they are two sides of one question. Thirdly, judicial power to modify the administrative acts is the embodiment of second hearing of fact and trial of law against administrative acts.The second part demonstrates the necessity and suitability of establishing judicial power to modify the administrative acts. It points that establishing judicial power to modify the administrative acts in administrative suit has a solid theoretical and social foundation. Democratic constitutionalism、restriction and equalization of power、equity and justice, judicial final award and procedural benefit are all theoretical foundations of judicial power to modify the administrative acts. At the same time, development of administrative legislation in the world、the demand of developing market economy and the present situation of administration in our country are all social foundations of judicial power to modify the administrative acts. Sets up the judicial change power, supervises and the restriction administration through the court change decision decides after deliberation the power freely abusiveness, protects the relative person’s legitimate rights and interests to have effectively directly its realistically possible.The third part demonstrates the present concrete application of judicial power to modify the administrative acts. Include practical difficulties and legislation. In our country at, administrative power law didn’t stipulate the content of judicial review modifying administrative discretionary power until1989.And the system existence applied code narrow, doesn’t distinguish "obviously unfair" and "abuse of power", the jurisdiction has the neutrality and independence also meet the dilemma. The author points out the drawback and disadvantage of limited judicial power to modify the administrative acts being practiced in our country:firstly, limited judicial power to modify the administrative acts means that judicial supervision isn’t thorough; secondly,limited judicial power to modify the administrative acts doesn’t benefit implementing the principle of final jurisdiction power; thirdly, limited judicial power to modify the administrative acts doesn’t benefit ensuring legal interests of client timely and effectively; fourthly, limited judicial power to modify the administrative acts doesn’t conform to international developing trend of administrative legislation.The fourth part, the author give the advise about how to proceeding judicature change power system’s road of consummation. It discusses the present concrete application of judicial power to modify the administrative acts, expand the scope of judicial power to modify the administrative acts, define the principle judicial power to modify the administrative acts. The author holds the point that the court must master the following several principles when they are exercising judicial power to modify the administrative acts and cognizing "obviously unfair":the principle of proportionality, the principle of shouldn’t give an punishment in modifying judgment, the principle of not ultra vires. We must pay attention to the following problems in the application of judicial power to modify the administrative acts:the first is respecting administrative discretionary power; the second is distinguishing the scope between obviously unfair and abuse of official competence; the third, we shouldn’t give an aggravated punishment to plaintiff in modifying judgment; the fourth, the judge couldn’t punish anyone of escape unpunished or exercise judicial power to modify the administrative acts because of "obviously unfair" directly when they find escape unpunished in trial; the fifth is correct understanding" the judge’may’decide to modify administrative punishment because of obviously unfair"."May" means that the court can decide to exercise judicial power to modify the administrative acts or not according to the needs of situation. At the same time the author points out some exceptions in practice:the first,the court may not follow the principle of judicial modification without aggravated punishment when two or more administrative counterparts breaking the law in complicity sue against the concrete administrative act at the same time; the second, when the administrative organ punish law violators much too differently according to the same illegal activity in complicity with the same intent and the same harm, the court may give an aggravated punishment to one who gains lopsided less punishment; the third, when victim as plaintiff sues administrative organ for lopsided less punishment to administrative counter part, the court may add the counterpart of administrative punishment as third party in litigation and give an aggravated punishment to the third party in accordance with fact and law. Now the Administrative Procedure Law has the limited application scope, it is only applicated to administrative punishment case. In order to supervise and control administrative power, to provide reliefs for right realization, for administrative proceedings find goal’s realizations. Although judicial power to modify the administrative acts has necessity of existing, it isn’t the wider, the better, judicial power to modify the administrative acts must be exercised appropriately. judicial power to modify the administrative acts must be kept balance between supervising、controlling administrative power and ensuring、supporting administrative power. All have the authority the easy abuse of authority, this is an eternal not easy experience. experience. Must prevent the abuse of authority, must by the authority restraint authority", judicial power to modify administrative acts is discretionary power, it should be supervised legitimately. At the last, the author will expound how to supervise judicial power to modify the administrative acts.For all this, the author tries hard to straighten out relations between the judicial power to modify the administrative acts the administrative power. Profiting from predecessor’s theory achievements, the author puts forward certain perfect proposals, which makes it practical in exerting judicial power to modify the administrative acts to supervise the administrative to administer legally. Only by this way" the restriction and protection of the right" the original function of administrative law can be realized. And discusses our country administrative proceedings judicature change power system’s road of consummation.