Research On Judical Review Of Administartive Guidance

As a new kind of management mode,administrative guidance which is widely used in all aspects of the administrative fields has gradually become the administrative center of modern government.To some extent,it has filled the loopholes and the gaps of the law,however,due to the lake of theoretical research and legislation,administrative guidance in our life has been regarded as being short of lack legal responsibility and legal remedy.Meanwhile,there is not an integrated set of implementation procedures which leads to the fact that there exists a great number examples of violation of the lawful rights and interests of relatives in daily life.Therefore,it is extremely important to draw upon administrative guidance in judicial review for deciding on how to protect the legitimate rights and interests of relative people,and to standardize the administrative guidance.From the angle of judicial review,the first part first introduces the concept of administrative guidance,focuses on the analysis of the nature of administrative guidance and judicial review,analyses whether the administrative guidance is mandatory,whether it has power and whether it belongs to the administrative act,and finally reveals the essence of administrative guidance.The law does not have coercive power,but in fact,it has a mandatory new administrative act of power,thus laying a solid foundation for the development of the later text.The second part discusses the necessity and feasibility of judicial review of administrative guidance.First,the necessity of judicial review of administrative guidance is discussed from the angles of administration according to law,protecting the legitimate rights and interests of relative persons,having the right to be responsible,coordinating government intervention and market adjustment,and guaranteeing the final nature of the judiciary.Secondly,the feasibility of judicial review of administrative guidance is discussed,from the legal basis and the legislative purpose of administrative litigation.A comprehensive analysis of the degree of understanding and good judicial practice both at home and abroad.Analyzing the necessity and feasibility from various angles,it is concluded that it is the only way to take administrative guidance into the judicial review.Only the judicial review of administrative guidance can better protect the legitimate rights and interests of the relative people and effectively regulate the administrative guidance.The third part is about the judicial review of extraterritorial administrative guidance.First,the system of several countries in common law and continental law system is introduced,and the administrative guidance of Britain,the United States,Japan and Germany,as well as the corresponding relief mechanism,are analyzed and investigated.Secondly,the author gets the corresponding enlightenment from the above analysis.The last part expounds the system construction of judicial review system of administrative guidance in China.First of all,it starts with the basic principles,including the legal principle,the principle of trust protection and the principle of responsibility attribution.Secondly,it puts forward the ideas and suggestions on the revision of the current administrative procedure law and the judicial interpretation;finally,it is the concrete system construction of the judicial review of administrative guidance,from the breadth,object,depth,mode and burden of proof of the review.The distribution and the types of administrative litigation examined.