Research Of Administrative Action

From1991to1999, after nearly a decade of efforts and exploration,the idea of administrative action initially established in china.In the theory circle,there exist different theories and views about the concept of administrative action.To define the concept of administrative action, we must make a comparison of administrative action and administrative right to sue, and plaintiff qualification in administrative litigation,and administrative litigation right. The concept of administrative action should be defined as: the right of administrative relative person and administrative relevant people whose rights or interests are affected by the administrative activities of administrative subjects to start and continue the administrative proceedings and to place the administrative activities under judicial scrutiny and throughout the whole process of the administrative litigation activities. To clear the constituent elements of the administrative action, it is necessary to clear what is the constituent elements and distinguish it with the exercise elements of administrative action. What’s more, a "favor" should be followed, that is it does the subjects of administrative action a favor of understanding what is administrative action and how to exercise it.The constituent elements of administrative action include subjects, objects and contents. The subjects of administrative action include administrative relative person and administrative relevant people whose rights or interests are affected by the administrative activities of administrative subjects;the objects of administrative action include the specific administrative activities and the abstract administrative activities;the contents of administrative action include some specific rights,such as the right to sue, the right to appeal, the right to apply for a retrial, withdrawal accusation, access to the jurisdiction and so on. Administrative action is a basic human right, which belongs to the fundamental rights of citizens, having the characters of basic and affordable; it has a nature of relief and original right; it has dual attributes of right. The functions of administrative action embodied in:it is the basis for the subjects of rights to exercise rights, is the basis to prevent and control the abuse of executive power, is the basis to improve relevant legislation, is the basis to sound the litigation system. In China,there exist several problems about administrative action:the theoretical foundation of administrative action is weak;the legal status of administrative action is unclear;the provisions of the Administrative Procedure Law is defective. The deficiencies of the Administrative Procedure Law are mainly reflected in three aspects: the narrow scope of administrative litigation;the limited standing to sue in administrative proceedings;the short limitation period in administrative proceedings.To improve administrative action in china, we should follow four aspects:laying a solid theoretical foundation of administrative action;clearing the legal status of administrative action;perfecting relevant legislation in administrative proceedings;the extension of protecting administrative action.Among them,clearing legal status of administrative action means providing for the protection of citizens’action in the Constitution provides and making it a fundamental right of citizens, and in the "administrative procedure law",showing and emphasizing the essence and significance of administrative action. The concrete proposals to perfect the administrative litigation law include:enlarging the scope of administrative litigation, there exist a lot of problems in China’s "administrative procedure law" and the judicial interpretation about the scope of accepting cases, to protect administrative action,it is necessary to expand the scope of accepting cases; relaxing the standing to sue, in traditional plaintiff qualification theory, plaintiff is defined as "the administrative relative person affected by the specific administrative activities", but in fact the "standing to sue" in administrative cases is more suitable for the prosecutor, which include administrative relative person and administrative relevant people affected by the administrative activities;perfecting the limitation period.In addition,the protection of administrative action should also realize two aspects:the judicial independence and administration according to law.