The Research Of The Establishment Of Administrative Convention

To clearly know what conditions should be met could establish administrative convention is the beginning of defining administrative convention and constructing its application rule. Administrative convention, which status in unwritten laws has been widely accepted, plays an important role in improving administrative efficiency, protecting the benefit of private party and restraining the behavior of administrative subject. Administrative convention provides reference standard to the administrative subject and the behavior of private party, which makes both sides have specific judgment standard in determining which could be the basis at specific administrative act. It could effectively prevents the arbitrariness of administrative subject caused by different criteria and ’the dissimilarity verdict in the same kind case’ caused by the transmutation of the criteria. However, the study of the essential elements of administrative convention is not mature enough and has not formed consensus. What’s more, the application of administrative convention in practice has not established on the basic of clarifying the connotation and denotation of administrative convention. On the basis of analyzing the importance and necessity of essential elements clearly, the dissertation discusses the facts which influence the establishment of administrative convention. The dissertation also put forward the concrete contents of essential elements and analyses the practice basis and the specific application of the administrative convention.In Part I, the dissertation firstly analyses the value basis of the administrative convention and the reason why should clear the conditions of the establishment of administrative convention. The construction of essential elements plays a significant role in several fields, such as clarifying the connotation and denotation of administrative convention, realizing the institutionalization of administrative convention, achieving the principle of self-restraint in administration, protecting the reliance interest and providing operational standards for the judicial adjudication. Secondly, the dissertation introduces the related theories which could be referenced in establishing administrative convention in both fields of civil and commercial and category of international law, which are the mature parts in customary law.In Part Ⅱ, the dissertation discusses the factors which influence the establishment of administrative convention. As the rule occurring in practice, the administrative convention is influenced by many factors, such as subject factors, subjective psychological factors, objective behavior factors, geographical range of factors, the factors of statute law, ideal law and policy and legal factors. The factors, how to play roles in and whether ultimately influence in the establishment of administrative convention, will be analyzed in these part.In Part Ⅲ, the dissertation shows the specific composition of administrative convention essential elements including statute of a subject, having a certain region, subjective belief, having long-term repeated applicable objective behavior, conforming to the statutory provisions and conforming to the public policy. The relationships among these specific essential elements are not isolated. It should be taking comprehensive survey for these essential elements to judge an administrative convention existing or not.In Part Ⅳ the dissertation firstly analyzes the practice basis of the administrative convention in our country, which including the definition of administrative convention in all type of laws and regulations and standard legal documents during practice, the conditions to produce administrative convention and how to judge an administrative convention to be established or not for court in existing cases. Secondly, the dissertation comes up with how to use essential elements to judge an administrative convention to be established or not in both the implementation process of specific administrative act and judicial adjudication. There are differences between two sides. The examination to the implementation process of specific administrative act is stricter than in the judicial adjudication. The key of the examination is whether it conforms to both the statutory provisions and the principles and spirit of law in administrative litigation.