Query On The Nonstop Execution Principle Of The Administrative Procedure

The reason why non-suspended principle be set as one of the five basic justicerules in China’s “Administrative Procedure Law” is the requirement of presumptivelegality and continuity of administrative act, and the public interest. But with thedevelopment of administrative litigation practice, the progress of legal theory, andpervasive of democracy concept, this principle has be questioned. Its shortcomingsincreasingly pop-out which not only caused a fierce debate in academia, but alsocaused significant damage in the administrative litigation practice which the symbolicnational compensation cannot offset. It placed the accuser and the defendant anunequal stage which cannot additionally guarantee administrative counterpart’s rights.China’s principle of non-suspended principle need to be reconstructed, by studyextraterritorial experiences, based on her reality.Based on the analysis of the regulation and details of the non-suspendedprinciple, this article discussed several basic theories such as presumptive legality inAdministrative Law, efficiency, and interests balancing. Furthermore, I studied ourcountry’s theory and practice of the principles of administrative law combined withextraterritorial investigation on related systems and made several assessments andreflections. In summary, this paper, through rational analysis and comparativeanalysis, can be divided into four chapters:Chapter1: non-suspended principle rules and theoretical basis. The part throughthe analysis of the existing legal provisions, discussed the inherent contradictionsbetween non-suspended principle execution and the status of implementation oflegislation. This part through the intrinsic properties of the Public Force,administrative efficiency needs, and interest’s protection of the community and thethird person to introduce its theoretical basis.Chapter2: Queries on non-suspended principle. This section describes theproblems of legal provision itself, institutional contradictions and legislative purposeto analyze this principle.Chapter3: Stop or not? The opposition and integration. This section describesGermany, Japan and other countries and regions legislative history, from theory,application, decision methods, standard of review and outcomes aspects to comparetwo principles’ differences. Based on above analysis, this paper then discussed theemergence and development of China’s non-suspended principle with comparison methodology.Chapter4: non-suspended principle’s reconstruction and improvement. Based onthe conclusion divided from Chapter3, present reconstruction and improvement blueprint and policies.