Externalization Of Internal Administrative Behavior

According to the traditional theory of administrative law,"Internal administrative act" has non litigation.But the Supreme People's court in the case of Hongsheng companies pointed out that the "internal administrative act after externalizating" is actionable,At the same time,the Supreme People's court puts forward the judgment rule of this "externalization".Since then,the academic circles and the administrative trial practice have arisen the research about the "externalization of internal administrative act".Because of uncertainty judgment rule in the case of Hongsheng company,There are some differences in the understanding of the elements of "externalization" in the academic and administrative trial practice.In this paper,the relevant provisions of the Supreme People's court case,that the "externalization" should include the "externalization of content" and "externalization of effect".For the "externalization of content",the Supreme People's court in the judgment rules of Hongsheng case pointed out the key word "authority" and "unfair" and other words are unclear,cause Some of the new forms of externalization in the practice of administrative trial have doubt on the question of whether meet the requirements of "externalization of content".In this paper,I think that we should evolve around the "legitimacy" to judge.According to the degree of legitimacy,"externalization of content" can be divided into "administrative organs active informing","neither administrative organs active informing and non external active obtaining" and "external active obtaining" three class.From the perspective of judicial practice,although there have some differences in the legitimacy,but they are all meet the requirements of "externalization of content".For the "externalization of effect",Its essence is to judge the "actual effect" of the internal administrative action on the rights and obligations.This judgment of "actual effect" should be objective and indirect.Need to combine the specific circumstances of the internal administrative action to analysis.From the practice of administrative adjudication,The main factors that can influence the "actual effect" of internal administrative act mainly include:(1)Whether internal administrative actions have been implemented?(2)The basis of the internal administrative act;(3)The relationship between the internal administrative act made organs and recept organs.This paper starts from these factors,combined with the practice of administrative adjudication,sum up the judgment of the context about the "practical impact" of internal administrative act,in order to provide a detailed analysis method about the "externalization of effect".