Study On Judicial Review Of Administrative Emergency Behavior In China

As an integral part of emergency management, the essence ofadministrative emergency judicial review is the particularity ofemergency response and the product of the judicial power of checks andbalances combined closely with the coordinating role. In regulation ofadministrative emergency ways, the power of judicial review is based on itsnatural attributes played a very unique "character": the relationshipbetween nation (the government) and social (citizen) under the emergencymanagement state needs judicial review as a balancing mechanism tocoordinate distribution of rights and obligations between the parties subject;judicial review as an important institution to strengthen communication andconsultation between civil society, the executive and the judiciary, in fact,play an enhanced civic discourse, promote the interaction of the threetrust "leverage" among judicial, administrative and social. Based on theabove ideas, this paper is divided into five parts to discuss the judicialreview of administrative emergency behavior:The first part introduces the categories and characteristics ofadministrative emergency behavior. The change of administrativeemergency behavior originated from the modern government functions androle, in the "welfare state" and "government oriented" thinking mode, themodern government in public emergency prevention plays a role of "mainforce". Designation of administrative emergency behavior categoryshould be compared with similar behavior, including administrativeemergency behavior and the state of war, mobilization, a state of emergency, emergent events, and thus sums up the basic concept ofadministrative emergency behavior. Administrative emergency behaviorhas somecharacteristics different from normal administrative behavior,mainly for beyond the normal rule of emergency, limiting the rights ofcitizens "expansion", strengthen the executive power of the "centralized"and beyond "rule by law" from "procedural simplicity".The second part analyzes the administrative emergency judicial reviewin our country are faced with the dilemma. This dilemma is mainlyembodied in three aspects: first, the ambiguity of real specification. Realspecification does not provide a clear mandate of judicial review ofadministrative emergency basis, from the legislative intention inference, isalso unable to find a definite answer. Second, the negativity judicialpractice. The lack of administrative emergency cases in judicial practice,not only is the result of the other party in the process of emergency rightsconsciousness weak, in a larger extent, depends on the people’s court foradministrative emergency judicial review of the negative, evasive attitude.Third, the controversial theoretical. Academia to the administrativeemergency behavior should be entered into the field of judicial review arethree opposite views, opinions can not be unified. Causes of this dilemmais the conflicts between judicial review represents freedom, procedure, thevalue of the human rights and the administrative emergency behaviorrepresents order, efficiency and public interest values.The third part is deduced and induction to the legitimacy of judicialreview. Its necessity is based by the thought of natural law and thedevelopment of civil society "self-defense", from the substantive rule oflaw extending from the administrative organ of power restriction, thejudicial idea of the state are deduced judicial activism and expansion. Itsfeasibility is based on many provisions of judicial review of the emergencylegal system of China in the administrative emergency behavior left roomfor its development, to a certain extent, it can be directly as a base forjudicial review of administrative emergency behavior. At the same time,there are all kinds of illegal or unreasonable phenomenon of administrativeemergency behavior in real life, civil society demands on the legitimaterights and interests is also growing, which constitutes the realistic basis of judicial intervention.The fourth part introduces the overseas experience of judicial reviewand Its inspiration brought to the institutional choice of China. This paperanalyzed and evaluated four national judicial review experience, includingBritain mode, France mode, America mode and German mode, anddemonstrates the basic characteristics of its judicial review mode throughthe relevant cases. Its mature and perfect judicial review techniques andrules can enlighten China’s system construction: the compromise in thejudicial review of the target mode choice; in the system pattern choiceshould pay attention to the limitation and the differentiation of judicialreview; in the selection of program mode should balance public and privateinterests.The fifth part is the specific construction of judicial review ofadministrative emergency behavior."Limited" judicial review representsthe limits of judicial power, therefore, in the act of infringement, breach ofprivilege, illegal procedure standard and unreasonable behavior standard,these four aspects should be made in different system arrangement from thenormal judicial review of administrative action. On the judicial review ofsubstantive issues and procedural issues, including the aspects of scope,judgment basis, review standard, the standard of proof, litigation subjectqualification, procedure time and aging, types of litigation and judgmentforms, inner tension should introduce new ideas, construct new rules tobalance judicial power and administrative right flexiblely, in order toachieve the balancing and coordination between emergency managementand judicial review.