A Study Of "Actual Impact" As An Justiciability Criterion

The Item (6) of Paragraph2of Article1of Interpretation of the Supreme Court on Some Issues Concerning the Application of the Administrative Procedure Law of the People’s Republic of China provides that "acts which do not produce actual impact on the rights and obligations of citizens, legal persons or other organizations do not fall within the scope of cases acceptable to the court","actual impact" thus becomes one of the criteria to judge whether an act worked out by an administrative organ is justiciable in the administrative litigation system. Considering the Supreme Court’s original intent when making this provision, the "actual impact" criterion mainly applies to the justiciability of an administrative act which is not yet established or is under internal operation. To some degree, this approach learns from the "ripeness principle " of U.S. administrative law, but they are different in scope and substance.In practice, courts at all levels expanded the application of "actual impact" item. There are three main approaches:it is applied as a criterion for the justiciability of revocatory administrative acts;as a miscellaneous provision to judge the justiciability of all administrative acts;as a criterion for the justiciability of the confirmation of responsibility of traffic accidents. There are two reasons for the expansion:firstly, the interpretation itself has inherent gaps;secondly, the expansion gains support of the theory of "quasi-administrative act". The first two approaches cannot be interpreted legally, namely they are false application methods;the third approach can be covered by the scope of the "actual impact" criterion.As a justiciability criterion,"actual impact" is usually mixed up with the criterion of plaintiff qualification in administrative litigation,"legal interest relations", academically and practically. It hinders the development of administrative litigation system. Scholars make every effort to distinguish them, like substantive review of the "actual impact" and reconstruction of the plaintiff qualifications, but all failed. To resolve this issue, we need to sort out all elements of the "actual impact", such as the generation time, the point of view to judge, the substance and the review stage. The generation time of the "actual impact" to relevant parties is the time when administrative organs make out acts;"actual impact" should be judged from an objective perspective;the legal impact is the substance of the "actual impact", and the impact should be specific;the review stage of the "actual impact" should be retained before the case is accepted by court.