An Empirical Study About The Externalization Of Internal Administration Action

In the traditional theory of administrative law, it seems to be a common sence that internal administrative actions should not be prosecuted.But with the development of the society,administrative activities become more and more complex and the involvement of internal and external administrativeactions become more and more prominent.Internal administrative actions expecially the reports, requests, replies and instructions between administrative instruments has being prosecuted more often.Neither of the Administrative Procedure Law and the judicial interpretation of The Supreme People’s court make provision about the externalization of internal administrative actions.But it can be found that the attitude of court about the externalization of internal administrative actions is clear in the judicial practice.Court puts those internal administrative actions which will affect the rights and obiligations of the courter party into the scope of administrative litigation on the basis of the “expansion” of those actions.It responds to the expression of the existing administrative norms actively.The author founds that the studies of the externalization of internal administrative actions mainly focus on personnel-natured.Although some people studies the working-natured actions,the externalization is there point.As for the specific standard of judgment of the externalization,it is short of detailed explanation and analyze of how to weigh the essence of the “expansion” in the trial practice of the actual situation both in theory and practice.It remains to be further studied.Therefore,the author hopes to analyze the externalization of expanded iternal adminstrative actions through the empirical studing about the judicial cases to clearing the element of the judgment and forming the nomative judgment system.Firstly,starting from externalization of internal administrative actions, the Article defines the range and clarifies the nature. In accordance with the difference of work contents, internal administrative actions can be categorized into two types: working-natured actions and personnel-natured actions. The former includes the instructions, directives, approvals, replies, etc given by the higher authorities or administrative leaders to the lower authorities or subordinates as well as other internal working arrangement, schemes, system and so on. The latter includes the rewards and punishments, appointment and dismissal, assessment, staff movement, remuneration, welfare and so on. The Article mainly focuses on working-natured actions. Besides that, in respect of nature of externalization of internal administrative actions, the Author is of the opinion that the administrative actions are changed by the externalization to be the external administrative actions.Afterwards, the Author analyzeses the justiciability of externalization of internal administrative actions. Starting from the standards of justiciablity, the Author puts forward the standards of “Factual Influence on Rights and Obligations”, providing a new thought on judging the justiciability of externalization of internal administrative actions. In addition to this, the Author also confirms the possibility of justiciability on the basis of legislations and practices.The author based on reality and judicial practice, concluded the elements of “externalization” of internal administrative behavior by analysing the jugdgemental thoughts of regional courts and the supreme court, which are the content element, the formation element and the substantial element.The content element is the precondition of the connection between the internal administrative behavior and the rights and obligations of the counterpart; the formation element is the power of transformation to the effect of the internal administrative behavior, which is also the impetus of the substantial influence; the substantial element is the core to the“externalization”and the key of deciding the internal administrative behavior litigable. The content element refers to the directivity of specific rights and obligations within the internal administrative behavior. Judging the directivity of the rights and obligations, it is not enough to consider the nominal meaning of the words and sentences, but the substantial meaning of the content. The formation element is the path of permeating the internal administrative behavior to the external, which respects the true intention of the subject of behavior and satisfys the requirements of the jurisdition differentiation and meets needs of the subjuct who shall be delivered to.Meanwhile, the formation element promtes the judicial practice of administrative laws and ensures the well operation of administrative power. The internal administrative behavior is still not ligitable by meeting the content and formation elements, which still needs the third element to have substantial influence on the counterpart. The substantial influence shall be object and refer to legal influnce of the rights and obligations tothe counterpart, which covers substantial and procedural rights and obligations.