Research On The Value And Risk Of The Administrative Counterpart’s Right Of Resistance

Administrative counterpart’s right of resistance is the right that the administrative counterpart who considers the administrative act invalid refuses and defenses the obligations established by the invalid to protect their legal rights and interests. This right has quadruple value that is the protective value associated with defending administrative counterpart’s legal rights and interests, the power-controlling value relative to lead administrative enforcement to the planned order, the participative value linked to reforming administrative governance pattern, and the balanced value connected with promoting both sides of administrative legal relationship to the parity. However, just as a coin has two sides, the risk that administrative counterpart can not exercise the right of resistance, administrative organ can not carry out the law, and public order can not be steady and stable behind the value can also not be ignored.The feat of Satyagraha movement during the struggle for independence of India and the contribution of civil disobedience movement during the democratic process of U.S.A both have enlightenment for China. Since under the circumstances of profound national innovation of building the ruled-by-law China and harmonious China, it really should be the standard of examining carefully and roundly the pros and cons of administrative counterpart’s right of resistance. Under the ruled-by-law China, the first phase is that the right is in line with procedural justice. It makes the administrative procedure gradual shift from efficiency to equity, just as higher efficiency does not necessarily mean a better society. The second phase is that the right is in line with administration by law. For administrative organ, this right is warning shot and power index line. In the harmonious China, the first phase is that the right is compatible with basing on the people. Invalid administrative acts have aggrieved the civil rights and interests about daily survival and development, so administrative counterparts need self-help such as the right of resistance. The second phase is that the right is compatible with guarding and maintaining the public order. This right emphasizes an open individual order, which both sides of administrative legal relationship should contain and treasure the different advices from the other side. And it also stresses a stable public order, which it can avoid executing the administrative decisions seriously breaching public will so that social contradictions can be resolved in the bud.The value needs to be achieved. Nailing down the legal status of this right in the Constitution and planned-legislating Administrative Procedure Law is imperative. It can provide the juristic basis for the performance and non-performance of both sides of administrative legal relationship being legal or being not. For the right relief, setting up the resistance-response administrative procedure and special litigation procedure of confirming inefficacy is greatly necessary. The former includes giving reasons of administrative act and administrative reconsideration of confirming inefficacy. The risk needs to be regulated. One is to limit the exercise-condition of the right as beforehand regulation to avoid right-dissimilation, which demands for the exercise-subject being confined to the single administrative counterpart, exercise-object being confined to the invalid administrative act, and exercise-method to refusing and defending. The other is to found the judicial injunction as interim regulation to reduce right-vacuum. Administrative counterpart applies to the court to ask for a ban on executing the administrative act before authoritative organ makes a final cognizance of its efficiency. Another is to establish the obligation-imposed mechanism as post regulation to punish right-dissimilation, which depending on the specific condition makes single penalty or concurrent penalty in terms of the property, the body and the reputation.On the ruled-by-law way, the harmonious way to come true the Chinese Dream, the participation of administrative counterpart’s right of resistance is absolutely necessary.