Discussion On Invalid Administrative Action

The Article 75 of new Administrative Procedure Law has establishes the judicial review regulations of invalid administrative action that the court identifies invalid administrative action through acknowledging invalid judgment.Since there are conditions of over simple and fuzzy application standards in the regulations of theory,law and judicial of the Article 75,perfecting invalid administrative action regulations shall be started from perfecting the identification standards of Article 75.The Article 75 of new Administrative Procedure Law enumerates two different condition of invalid administrative action,including no subject qualification and no basis.Different subject qualification conditions have different identification results towards different implementation subjects.And law ignores entrusted organization which should be included in the judicial review regulations.The identification results shall be based on case analysis and the basis lacking condition shall be restricted into the range of lacking legal basis."Significant and obvious" law violation is the general provisions of invalid administrative action;Invalid administrative action should be illegal of"significant and obvious".However the listed two specific conditions of the article do not embody the obvious characteristics.As a result,it is suggested that when refining the general standard,the implementation of obvious conditions shall be paid more attention while focusing on significant defect.In addition,raveling out the hierarchical relations among invalid judgment,abrogation of judgment,and identification of law violation can facilitate the restrictions on abuse of invalid judgment and the legal application of judgment types.About the procedure,it is good to listing specifically that can reduce mistakes by leaning German law.Meanwhile,in order to realize the legislative intent of establishing invalid judgment,the opinion of that invalid administrative action is not restricted by limitation of action.And then based on this basis,the article of "plaintiff applies for litigation of invalid affirmation" shall be cancelled.The judge is suggested to be endowed with the right of transferring judgment type based on specific conditions without explaining.The invalid administrative action regulations not only include judicial review system,but also include the relative regulations of procedures before prosecuting.As a result,the join problems of judicial review regulations and other regulations shall be focused when perfecting judicial review regulations.The expectation for the right of resistance of private party and the burden of proof in litigation are also can facilitate the future researches on invalid administrative action regulations.