| In some ways,the protection to the rights of administrative counterparts show the state and level of rule by law in the area of administrative law.The right to defense of administrative counterpart is a new concept in China,nowadays,it’s confirmed by some administrative law,however,it differs from administrative laws,and the institution is unsystematically.The protection of the right to defense depends on some laws whose legal rank is relatively low.The theory about the right to defense exists great difference.In this case,it is highly necessary to reconstruct the theory and the system.This paper follows the way of normative jurisprudence,do research into the analysis of legitimacy,normativity,and effectiveness respectively,using the method of “concept carding-theory rebuilding-institution reconstructing”.Especially with the literature analysis method,this paper sorts the study of the right of administrative counterpart,analyzes the weaknesses of the institution.At the same time,this paper learns the study and institutions about the right to defense in extraterritorial countries and regions,providing reference for the reconstruction of the institution.Firstly,this paper cards the fundamental theories about the right to defense,defining the right to defense as: during the administrative law enforcement and before administrative agency making decisions,aim at the legal and factual basis of those decisions,administrative counterpart furnishes difference evidences,subjects cross-examination,and justify himself,with the purpose of eliminating or mitigating the charges against himself,or wining more interests for himself.This paper also puts forwards that the right to defense has the characteristics of legality,subordination,procedural rights,unequivalence and limitation.Furthermore,this paper mentions that the right to defense can equalize counterpart with administrative agency in legal status,qualify counterpart with the opportunity participate in administrative procedure,combine the efficiency and fairness in the administrative decision,and it can extend the right system of administrative counterpart.In addition,this paper compares the right to defense with the right of statement and the right to hearing,and raises the idea that the right to defense is developed in the principle of Natural Justice and Administrative Participation.Secondly,in order to clear the clarity and logicality of the rights and obligations,this paper puts forward the ideas of improving the theory of the right to defense,clearly puts forward the right to defense is a basic procedural tight of administrative counterpart.And perfects the theory system with the subjects,objects,scopes of application,time limitations,ways and patterns of manifestation.And reiterate the importance of the principle of prohibition of adverse alteration in defense.Thirdly,this paper compares the institutions about the right to defense in America,Britain,France,Germany,Japan,Chinese Taiwan and china,this provides reference for the study of the right to defense.Then,this paper finds the obstacles of the exercise the right to defense,including the imperfection of the legislation,the unclarity of obligation,the lack of supervision system,and the lack of remedy system and the regulation of legal consequence.The finding provides the ideas of improve the condition of the right to defense.Lastly,this paper perfects the institution of the right to defense in the legalization,relief and popularization. |
