A Study On Civil Servant’s Right Of Resistance And Its Legal Relief In China

In administrative practice, decisions and orders of the higher civil servants to perform its statutory duties, which is to implement the higher level decision-making and improve the administrative efficiency of the inevitable requirement. The problem is that, in the administrative management activities, the higher the decision or order is not always scientific and correct, superiors issued illegal orders lead to lower levels due to the implementation of the illegal command and property damage was investigated in no way responsible individual phenomenon, which is a real problem legislation and judicial practice must face.The concept is a civil right of resistance right from concept to resist political and constitutional sense evolved, and the resistance of the executive relative who together constitute the right of resistance administrative law sense, research scholars in our country on the right to resist the administrative counterpart already relatively mature, and the study of resistance to the right of civil servants is relatively small, relatively imperfect law, resulting in a higher level civil servants due to the implementation of unlawful command be held criminally responsible practices continue to emerge.Although China’s Civil Law special provisions for civil servants with a right to resist illegal orders of superiors, but due to the implementation of appropriate supporting measures incomplete, leading to a deputy director of the Lianjiang City Land Bureau illegal issuance of land use certificates sentenced repeat dereliction of duty, and based on this, it is necessary to resist civil rights system systematic study, which made supporting the implementation mechanisms to help the effective implementation of the law in reality.On the basis of the analysis of the concept and the connotation of civil servants’ right of resistance, starting from the exploration of the theoretical foundation of setting civil servants’ right of resistance, this paper delves into the origin thought of the right, and expounds the realistic significance of the implementation of civil servants’ right of resistance. In addition, enlightened by the legislative and judicial practice of foreign civil servants’ right of resistance, by comparison of the relevant provisions of State Sector Act, starting from the exploration of the right and the institution, this paper also concretely analyzes the applicable principles and exercise procedures of the right of resistance and various prominent problems the civil servants have encountered during the process of exercising the right of resistance, such as the unclear definition of the superior, difficultly recognized criteria standards, uncertain scope of misfeasance and malefaction. Meanwhile, in this paper, the relief of civil servants’right of resistance is thought, the lack of the current relief system on resistance rights and various problems such as the difficult execution due to the unclear lexical conventions and the weak civil servants’ consciousness of responsibility are objectively analyzed, relief approaches to improve the current inner administration behaviors and two approaches to perfect the relief system on civil servants’ right of resistance and to enhance the maneuverability of civil servants’ rights in the judicial relief are proposed, which, on the one hand, can safeguard civil servants’ own interests, on the other hand, can also eliminate civil servants’ worries and thus let them execute the command strictly in accordance with the law, so as to further protect citizen’s legal rights and to further safeguard state and social public interests.