Study On The Fragment Filling Of Administrative Law

Administrative law is to regulate the government activities,and the expansion of administrative tasks caused increasing number of administrative law,and more administrative loopholes accompany.At the same time,administrative law as a concrete constitution should implement and protect the basic rights of constitution,administrative loopholes which is relative to the legal norms of private law loopholes will become more intolerable.The expansion of administrative tasks and the transformation of governance ideas enriched the content of administrative law and the role of administrative role,and it is create an important condition for the administrative law to apply private law norms.This paper can provide theoretical guidance for the administrative organs and the judicial organs to fill the loopholes in the administrative law norms,and develop a set of legal loopholes method of administrative law.And reflect on and examine the Supreme People ’s Court method to fill the loopholes in administrative law and its problems in the guide case.This paper is divided into five parts:The first part,the main analysis of theory of loopholes filling of administrative law.Legal loopholes are the imperfectness which violate the spirit and purpose of law and constitution.The loopholes in administrative law norms refers to the violation of(broad sense)administrative law and constitutional spirit and purpose of imperfectness.that is to say,in the whole constitutional order and administrative law constraints,law should regulate the fact,but law in fact lack of such legal rules or the application of the legal rules will obviously produce injustice results.Legal loopholes can be divided into two categories: normative loopholes and regular loopholes.The separation of conduct norms and referee norms is good for understanding Normative loophole.Fulfilling loopholes is a process which full of applying of the rule,subject diversity and value judgments.Administrative law norms of the loopholes can be divided into two levels: the general court of the loopholes to fill and fill the loopholes in the Constitutional Court.The human dignity in the constitution,objective function of the basic right,and the division of power in the perspective of functional law can provide a constitutional basis for the filling of administrative law rules.The second part: the new Hegelian objective spirit and the rules-fact dialectical relationship is key to understand Larenz law loophole filling theory and the basis of the entire legal methodology.Larenz gave the judge legal action outside the law to give a very strict limit,and did not give the law under the law of the loopholes in the law to fill the strict restrictions.In fact,the loopholes in the law to fill the admissibility of the problem is unavoidable.When formal justice takes precedence over substantive justice,the admissibility of problem becomes more important in a legal system.In order to reconcile the contradiction between the administrative principles of law and the loopholes in legal loopholes,we should first meet the formal justice value which embodied in the principle of administration according to law,that is,to realize the possibility of citizen’s prediction of administrative activities.The admissibility of the filling of administrative law should first clarify whether the legal norms to be filled are procedural legal norms or substantive legal norms,and then excavate and consider the interests of different subjects.The third part: The legal application must state that the basic principle that can be constrained by constitutional values.If the conclusion can not be concluded through the current law order,then consider the role of constitutional value order(especially the value order of basic rights)to the process of legal loophole filling.legal principles should be prohibited in the use of analogy to fill the legal loopholes.using the analogy to fill the loopholes generally should first consider the analogy of administrative law,and then consider analogy applicable to civil law and criminal law and other legal norms.Analogy should be in order: legal-administrative regulations-local regulations-administrative regulationsadministrative regulations.Analogy is subject to both internal and external restrictions.Due to the particularity and multi-level nature of administrative law,the application of administrative legal norms should first adopt a systematic way of thinking.The purpose of limiting has different application restrictions in different areas.The exception clause does not directly exclude the application of the purpose of limiting,still need to combine the nature of the terms and make comprehensive judgments.Expanding the purpose is special in administrative law : First,method the purpose of expansion to fill the legal loopholes,the administrative counterparts should not exceed the reasonable forecast.Second,in addition to considering the purpose of the legal norms,the executive authorities must also consider the purpose of the authorization law and the legislative purpose of the superior law.The fourth part mainly to study judicial review in process of fulfilling loopholes.In a few exceptional circumstances,the Court is subject to constitutional review to compensate for the lack of the function of the constitutional review mechanism.China’s courts in the process of legal loopholes need to apply the Constitution."Administrative Procedure Law" Article 70 "obviously improper" provisions provide empirical support for the court in a vague way to apply the constitution.If the matter of involves the field of democracy,the court should implement a strict examination of the density.In the event of legal loopholes in the procedural matters,the courts carry out low-intensity censorship in the course of the review.The fifth part: the guiding case plays a role in the supply of the administrative law.There are the following shortcomings in the guiding case: first,they ignore the value of constitution and separate administrative law and the constitution;secondly,they lack of necessary culvert process;Finally,the legal interpretation and legal loopholes points ignore the value behind the law.The Supreme People’s Court guiding case in the process of filling the law loopholes still need to improve: First,it is necessary to strengthen role the constitution loopholes in the process of filling legal loopholes.Second,increase the fact-norms culvert process in the referee reason.Third,it is necessary to strictly distinguish legal interpretation and legal loopholes.The sixth part:conclusion.The fulfilling of loopholes of administrative law is a process which is far more complex than traditional law loopholes.If the administrative organs and the judiciary found that the use of various method can not fill the legal loopholes,and suggestion should be provided to the legislature.The study of administrative law in our country can not be overly technical and departmentalized.We should strengthen the guiding role of the constitution on the development and perfection of administrative law,and construct the general theory of administrative law of chinese characteristics.