On The Administrative Counterpart Right Of Resistance

In the process of administrative power operation,there would be the collisions and conflicts between the citizen’s private rights and the government’s public rights.Especially in the transitional period of society,the long-term accumulation of social contradictions would be reflected by this kind of form.As a result,the studies on the administrative relative persons’ right of resistance gradually become popular,which is expected to be the tool to balance the status of the administrative relative persons and the government agencies.In the current domestic legal systems,administrative relative persons’ right of resistance has been strengthened,which can be mainly indicated from refusing inspection,refusing pay and refusing paying the fines.However,the legislative level’s regulation on the administrative relative persons’ right of resistance is limited and the scope is narrow,which cause the enforcement difficulties of the administrative relative persons’ right of resistance in China.In specific,these difficulties can be mainly manifested as following: in the respect of the theory,the concept of the ineffective administrative acts and the judgment standards are confusing;in addition,there is also lack of the responsibility system of the administrative relative persons’ right of resistance.In addition,at the institutional level,the litigation systems of invalid administrative acts are not perfect.Furthermore,at the practical level,the objects of exercising the right of resistance have some risks of the judgment,theadministrative subjects are indifferent,and the resistance acts are transgressed.With regard to these problems mentioned above,the author of this paper puts forward the following suggestions.First of all,the judgment standards of the right of resistance should be improved.“Severe and obvious crimes” should be considered from both the internal factors and the external factors and these two conditions------“severe crimes” and “obvious crimes” must be met at the same time.In addition,the identification of the situations of invalid behaviors can be further illustrated in the detailed rules of the administrative procedure laws and the judicial interpretations.In the second place,the requirements of the law on the exercising ways of the resistance right must be elaborated and the administrative relative persons’ exercising of the right of resistance should also be institutionalized.In specific,the institutionalization can be mainly separated into three steps: putting forward the resistance reasons,examining the resistance reasons,and implementing the specific resistance measures.If the administrative relative persons successfully complete the three steps above,the administrative organizations must immediately stop their administrative behaviors,and acknowledge the legitimacy and the effects of the administrative relative persons’ exercising the right of resistance.If the administrative organizations insist that the administrative relative persons do not apply the right of resistance lawfully,the administrative organizations should bear the burden of proof.In the third place,the systems of responsibility that adapt to the administrative relative persons’ right of resistance should be established.Then,according to the relevant contents of the system,the administrative relative persons’ behaviors can be evaluated.If the administrative relative persons’ behaviors are considered improper,the parties should bear the liability of obstructing the government administration.Finally,the relief systems of exercising the administrative relative persons’ resistance right should be improved,the prosecution deadline of invalidation should be made clear limits,and the burden of proof of invalid litigation should be confirmed,which can ensure the administrative relative persons’ smooth exercising of the right of resistance.