Research On The Pre-administrative Action Review In Administrative Litigation

As there is no pre-administrative act review system in administrative litigation in China,and the views of judicial practice and theory are not uniform on this issue,there is a great dispute about the pre-administrative act review in administrative litigation.Because the current administrative litigation system in our country is based on the traditional administrative behavior theory,the main research object of this theory is the individual administrative behavior,but it does not pay attention to the connection between the administrative behaviors or the administrative process composed of several administrative behaviors.Based on the theory of the public power of administrative act,the administrative law scholar in the state of China is used to discuss the issue of pre-administrative act review in administrative litigation,that is,the former administrative act is presumed to be lawful and effective before it is revoked by legal procedure,and it is considered that the pre-administrative act which is not the object of litigation should not be subject to incidental examination in administrative case.However,the view above is neither conducive to the substantive settlement of administrative disputes nor to protect the legitimate rights and interests of citizens.On the basis of clarifying the importance and feasibility of pre-administrative review in administrative litigation,it is necessary to reexamine this issue in the light of the current legislative situation and judicial practice in China,and allow the pre-administrative review when certain conditions are achieved.In view of this,this paper has begun to discuss the pre-administrative action in the administrative litigation.In addition to the introduction and conclusion,the text is divided into four parts,its main contents are as follows:The first part is the basic theory of pre-administrative behavior review in administrative litigation.On the basis of defining the connotation,denotation and classification of pre-administrative act,this paper expounds the concept and characteristics of pre-administrative act review in administrative litigation.Based on the theory of multi-stage administrative act and multi-stage Administrative procedure in German law,the connotation and denotation of pre-administrative act are clarified,and it is divided into vertical pre-administrative act,horizontal pre-administrative act and independent pre-administrative act.According to the above classification,further analysis of the concept and characteristics of pre-administrative act review in administrative litigation,that is,in the multi-stage administrative act or in the multi-stage Administrative procedure in the post-stage administrative act revocation of the lawsuit,the court will carry out a legal collateral review on the legality of pre-administrative act.The second part mainly expounds the necessity and feasibility of pre-administrative act review in administrative litigation.In the case of the withdrawal of subsequent administrative acts,the review of the legality of the administrative acts in advance can resolve the administrative disputes between the administrative organs and their counterparts,further realize the judicial supervision of the public power of the state,effectively protect the legitimate rights and interests of citizens,legal persons and other organizations,and improve the judicial review system of administrative proceedings in China.At the same time,the review of administrative acts in administrative litigation has practical practicability,which is based on the theory of administrative procedure and the theory of illegal inheritance of administrative acts,and also refers to the advanced practice of judicial practice.The third part of the main content is the preliminary practice and problems in the administrative procedure.With the increase of the number of administrative act cases,our country has carried on the relevant legislative work on the administrative act review in the administrative procedure,and the court has also made a decision on the starting way,the intensity,the standard and the effect of the review in the case trial.However,there are still some problems in the preliminary practice of the pre-administrative act review in our country,such as imperfect legislation,inconsistent starting method,inconsistent examination intensity,unclear examination criteria and different examination results,which lead to the awkward situation of "different judgment" and different decision scale.I'm sorry.The fourth part is to perfect some ideas of administrative behavior review in administrative litigation.In view of the problems existing in the practice of pre-administrative review of administrative actions in our country,and taking into account the essential characteristics of various pre-administrative acts,I think that,first,we must improve the relevant legislation,establish a pre-administrative review system in the basic law,and further eliminate the existing obstacles to pre-administrative review in the ordinary law so that the courts can rely on the law in the course of individual cases.Secondly,it is clear that the pre-administrative review must be initiated by application.Finally,the principle of "concrete analysis of specific problems" should be clarified.Different methods,standards and results of review should be adopted for different types of leading administrative acts.