Internal Administrative Act Suability Analysis

The third paragraph of article 13 in our current "Administrative Procedure Law"(the 2015 edition),prescribes that internal administrative act is not actionable, which has long been occupied a dominant position in the administrative legal theory, and guided the judicial practice of administrative trial. Although the "Administrative Procedure Law" has its first great length correction over the past 20 more years, of great significance, article 13 has not yet be changed. It shows an important influence on our country exerted by Germany and Japanese administrative legal theory. At the beginning of the "Administrative Procedure Law", based on our historical tradition, cultural background and other reasons, China mainly references the theory of special power relationship in German and Japan that are countries of continental law system. The theory tells that the disposing behavior of an administrative organ to its staff is a kind of special power behavior, and accordingly it can’t be sued. At that time, the management-oriented government also believes that the internal administrative acts belong to the internal behavior, generally do not involve the interests of ordinary citizens, so only the internal solutions can be needed. However, with the development of the times, the third paragraph of article 13 is increasingly challenged by judicial practice, the theory development and others, necessity and urgency of action against the internal administrative act forces a system reform of administrative trial. The No. 22 guiding case released by the Supreme People’s court is just a first practice of the administrative judicial reform; it also sends an important signal that is to call the administrative legal theorists and administrative judicial circle to pay enough attention to the action of internal administrative acts.This article believes the internal administrative acts can be sued on the premise that it has a clear concept. Since the word of internal administrative act occurs, its connotation and extension has been controversial. In fact, the internal administrative act is a collective concept of rich connotation, whether its litigation or not cannot be a negative pole. In addition, the developing and progressing era means that the original consideration factors that internal administrative act can not be sued are gradually changing. First of all, the development and improvement of the rule of law requires all the behaviors of the administrative organ must follow the principles of the rule of law, and law breaker must bear corresponding responsibility. At the same time, the role conversion from management-oriented government to service-oriented government also requires to restrain the power of the executive as far as possible, and to give people more guarantee of rights. What’s more, the theory of special power relationship in foreign countries has gradually become obsolete; its rationality has been severely questioned. Whether the development of theoretical basis, or the needs of the judicial practice, to lawsuit an internal administrative act is the inevitable direction of the administrative adjudication system reform.This paper mainly consists of three parts. The first part is to interpret the No. 22 guiding case into that in the current theoretical and judicial background, on one hand the court’s tone is to emphasize the internal administrative act generally can not be prosecuted, on the other hand, it has made some breakthrough by recognizing the internal administrative act actionable under its exteriorization. Thus, it leads this topic about internal administrative act suability. The second part attempts to explore causes of the internal administrative act suability separately from the development of theory, judicial practice and foreign reference, in order to make sure answer that internal administrative act is litigable. The third part further investigates under what circumstance the internal administrative act is litigable, and its review standards are divided into two parts——general review standard and special review standard, each of which is discussed.