Reflection And Improvement: The Analysis Of The Temporary Legal Protection On Chinese Administrative Procedure Law

As an issue not to be neglected in administrative procedure law, the research on thetemporary legal protection mechanism is of great significance both theoretically andpractically. Nevertheless, the construction of the temporary legal protection mechanism inChina is not systematic and lacks in restriction by the procedures. As a result, the mechanismis not able to keep up with the need of the diversified administrative procedures. Therefore, itis impossible for the mechanism to provide the concerning parties with immediate and fullprotection on rights. Hence, based on the analysis of the basic principles of the temporarylegal protection mechanism, this thesis researches on the status quo of the legislation andanalyzes the flaws and causes. In addition, through comparative studies, the thesis also tries tolearn from advanced experience abroad, expecting to pay its due contribution to theconstruction of the temporary legal protection mechanism.The first part of the thesis serves as the introduction to the basic theories. In this part, theauthor defines the connotation and the denotation of the temporary legal protectionmechanism with description of its nature and functions. Besides, the author researches on thebasic theories and legal bases of the mechanism, in order to present the framework of themechanism and demonstrate the necessity and significance of this mechanism.The second part mainly discusses the status quo and flaws of the temporary legalprotection mechanism in China. In this part, through the description of the current situation ofthe mechanism, combined with the advanced experience abroad, the author points out theflaws of the mechanism, which are: the deficiency of the classification of the administrativeprocedures leads to the fact the it is impossible to connect the mechanism with the specificprocedures; the three exceptions in executive suspension are explained vaguely, the standardsof substantive censorship are unclear and that the gap of procedural regulations lead to thedifficulty in operation in judicial practice; the problems such as the blank space in applicationrequirement of the mechanism and the standards of the censorship, the narrowness of theprotection boundary, the deficiency in detailed regulation are of no help for the protection ofrights of the concerning parties.The third part discusses the measures to improve the temporary legal protectionmechanism. In this part, the author summarizes the experience abroad, extracting the essence of the mechanism, combined with the judicial practice in China and proposes the followingsuggestions accordingly:1) research the relationship between the executive suspension andthe preservation system on the basis of the classification of the administrative procedure,demonstrate the issue of choosing and adaptation of the mechanism;2) establish the standardsof the substantive censorship of the executive suspension and stipulate the proceduralregulation;3) establish the exception system of the executive suspension to better protect thebasic rights of the concerning parties;4) reconstruct the framework of the preservation system.5) establish the requirement of the application and the censorship of the preservation systemand stipulate the procedural regulation.