Research On The Invalid Administrative Act System

Invalid administrative act theory is an important content in the administrative law theory, the basic idea it contains is that, if the administrative act does not accord with the legal requirements stipulated in the substantive law and procedural law, this kind of administrative act will be nullified automatically and it will never get force due to the limitation run, and also, it will not cause any legal effect to any party of the administrative legal relation. Therefore, authorities do not need to revoke the act or annul it. The administrative act comes invalid from the beginning since the time of the formation. The idea inherits the reasonable core of the theory of the limited presumptive legality and caters for the requirement of practice. Until now, many mainland legal system countries, led by Germany, have built mature system of invalid administrative act. In contrast, the rule of invalid administrative act in our country legislation system seems to be a large number of blank and scattered rules. Therefore, this paper regards invalid administrative acts as the research object, firstly, it dates back to the origin of invalid administrative act theory to find the true concept, and also identify it with other confusing concepts. Then, this paper analysis both the relevant legislation and case of continental law system in order to correct the mistaken understanding and using of invalid administrative act in our country’s legislation. What’s more, this paper has researched on all the rules of invalid administrative act system in China, to find the following drawbacks. Firstly, the current legislation in the regulation of invalid refers to generalized null and void which stands for the negative evaluation to the effectiveness of the administrative act, it’s different from the intention of invalid administrative act. In addition, in reference to the German system of invalid administrative act, we fell to exclude the illusion administrative act from the scope of the invalid administrative act, which caused the conceptual confusion, bringing inconvenience to the judicial practice. Secondly, although in the new revised administrative procedural law, it is ruled that significant and obvious illegal is the standard to judge invalid administrative act, but it is not enough. Without detailed rules,it will easily lead to excessive expansion of judicial discretion for the judge. Finally, China’s legislation in the procedural law of invalid administrative act is blank, for the judge, it will be easy to adopt other forms of sentence to replace the invalid judgment, for the relative party, the relief right is still subject to limitation, obviously, it is unfair treatment of the law. Aiming at solving these problems, the author argues that, first of all, it is necessary to establish the concept of invalid administrative act in law and refine the judgment criteria. Secondly, we should improve the system of relative person’s right of resistance to insure the realization of a private aid force. In addition, we shall also establish independent procedure and set procedure rules which are different from common administrative litigation. Finally, we should improve the enforcement procedure of the invalid administrative act to prevent the damage of the rights and interests of relative person.