The Study On The Withdraw Of The Administrative Action

The withdraw of the administrative action has been reflected in China’s administrative legislation and practice. However, there is little illustration in the administrative law circles, lacking of the deep studies in theory. There are only a few scholars having been involved, but with different recognitions. The purpose of writing this paper is to attempt to make a systematic study and analysis of the withdraw system of the administrative action through analysis and investigation. This paper is divided into three parts:The first part focuses on the analysis of the basis theories of the administrative action withdraw system. The withdraw of the administrative action is that the administrative departments withdraw its legal, effective, and still sustainable administrative behavior based on the changed situation or for public interests, eliminating its forces. It has an obvious difference to concepts as withdraw, mending and transforming. While the principles of change of situation and the consideration of public interests all provide a theoretical foundation and legitimacy to the existence of the withdraw system of the administrative action.The second part focuses on the investigation of the application of the withdraw system in the administrative system and practice, as well as the comparative foreign related regulations. At present, in the administrative legislation, apart from the "administrative licensing law", there are also 6 provincial administrative procedure actions and the "administrative procedure action" (draft), all of which have confirmed the withdraw system of administrative action, but also with some shortcomings, which all lead to the deviation of the understanding of the application of the withdraw system in practionice, triggering some controversies. But in countries with the continental law system represented by Germany, Japan and Taiwan of China, there are very complete and detailed provisions on the withdraw system of the administrative actionion, which can be an important reference to the construction of the specific rules of the withdraw system of administrative action.The third part focuses on the specific construction of withdraw system of the administrative actionion in China. Firstly, in the application of principles, the withdraw system should insist on the trust protection principle and the due process of law principle; secondly, in the application of rules, whether it is the beneficial administrative action or burdening administrative action should be firstly distinguished. The beneficial administrative action is generally prohibited from being withdrawn, except for some exceptions. While the burdening administrative action is generally allowed to be withdrawn, except for some exceptions. Thirdly, as to the exercising main body of the withdraw right, only the original administrative institutions doing the administrative action can have it. But in principle, the effectiveness of the administrative actionion would distinguish from the date of the withdraw decision made; then in the procedural rules of withdraw, the withdraw should be done within two years of the reasons for withdraw, and the withdraw behavior cannot be withdrawn once again; Finally, in the relief ways of the opposite party or the person of interest, there should also be different relief ways with the distinguish of different situations.