The Study On The Basic Theory Of Administrative Convention

Along with the intensive study in domestic academics recently,administrative convention has basically established its position as an informal source of the administrative law,and the exploration on its validity,function and institutionalization has also made a certain achievement.However,there are some problems in the study on principal theory of administrative conventions,which includes that there is no unified understanding about the concept and the element of the administrative conventions,and there are also many controversies about its function and judicial application.At the same time,there are still some omissions in the study on the administrative convention's basic theory.The administrative convention is widely existed in our administrative field and has an obvious characteristic of amount and variety.However,domestic scholars have no further exploration on its form,which is clearly not conducive to the construction and the improvement of the basic theory of the administrative convention system.Therefore,based on the construction and the improvement of its basic theory system,the primary task of this paper is to solve the existing disputes in the existing academic research,clarify the definition and the formation,and explore its function according to the judicial practices.Secondly,combined with theoretical knowledge and judicial practice,the paper put forward the relevant classification criteria,which aims to make it a typification analysis.This paper has five parts:The first part: definition of the administrative convention.By analyzing the different definitions of the administrative convention from domestic and foreign scholars,this part draws the consensus and solves the controversies.And through the comparison between the administrative convention and the administrative customary law,this part tries to give it a new definition.The second part: the essential elements of administrative convention.The elements of the administrative convention are closely related to the formation of it.First of all,the formation of administrative convention should have a premise that the current statute of the status of the law.Then,we must have the relevant realistic elements——the subject of the personality and the existence of a long convention of habitual convention.Besides,the element of confirmation that the administrative counterparts will be convinced that it is the law.And finally its own should have the validity of the elements which include the kernel of legitimacy and rationality.The third part: the analysis of the typification of the administrative convention.First of all,analyze the advantages and disadvantages of the existing classification criteria.And then,put forward three sets of classification standards——procedural administrative convention and substantive administrative conventions,policy-based administrative conventions and spontaneous administrative conventions,technical administrative conventions and normative administrative conventions——to complete the study of the typification of administrative convention.The fourth part: the exploration of the functions of the administrative conventions.Combined with administrative conventions and judicial practices,explore the function and value of administrative convention in the administrative management,administrative discretion,administrative control and administrative legislation.The fifth part: the settlement of the problems of administrative convention in the application of justice.Combined with the reality of judicial jurisprudence,firstly determine its status in the administrative litigation.Then,settle the problem of the distribution of the burden of proof.And finally put forward the criteria for the court to conduct judicial review of administrative conventions.