Study On Resistance Right Of The Administrative Counterpart

Under the background of the gradual improvement of administrative rule of law and the significant enhancement of civil rights consciousness,the issue of the right of counterpart of administrative counterpart has once again entered the academic and practical field of vision.The right of resistance originated from the thinking of the relationship between the people and the state in political science.The theory of people based in Confucianism,the theory of natural human rights in the west,and the theory of social contract have all provided a solid theoretical support.Under the support of the theory of invalid administrative act and the theory of limited public force,the right of resistance has become a clear legal right in administrative law.A large number of cases show that,although the right of resistance in China has been widely accepted,it has completed the change from "due right" to "legal right",but its practical value is underestimated and restricted by the lag of theoretical research and system design.On the one hand,the invalid administrative act lacks a clear and systematic judgment standard.There is a huge legal risk for the relative person to judge the ineffectiveness of the specific administrative act,and the relative is afraid to resist the administrative tort,which causes the right to fall to a large extent in the factual level.On the other hand,the way and boundary of the exercise of the right of resistance of the administrative relative is not clear.The relative person is difficult to grasp the limit of behavior.In practice,there are no lack of the legal right alienated into private violence,even the case of illegal crime,which causes the right not to play its due value,but instead of disregard and negation.The key to break through the realistic predicament of the right of resistance of the administrative relative is to carry out reasonable system design,and to guarantee the transition from "legal right" to "real right" of the right of resistance of the relative person.On the legislative level,a unified administrative procedure law should be formulated to clarify the legal situation of the invalid administrative act,and let the exercise of the right of resistance of the administrative relative have clear standards,so as to reduce the legal risk of the exercise of the right of resistance of the relative person.At the administrative level,in view of the resistance of the relative,the administrative organ should establish a system of resistance to reply.The executive organ should examine the effectiveness of the administrative act of the dispute and give the relative people a written reply according to the results of the review,strengthen communication and improve the administrative efficiency.In the review level,in the process of reconsideration of disputed administrative acts,the reconsideration organ should identify the effectiveness of the administrative act with the "invalid" procedure and take corresponding remedies or compensation measures against the consequences caused by the invalid administrative act,which can guarantee the legal rights and interests of the relative persons and the economy.The purpose of legal resources.The administrative disputes that have not been resolved by the reconsideration procedure,and the invalid administrative acts identified by the procedure of the lawsuit are in the final form of affirmation of the invalid judgment form to the relative person's right of resistance.The right to counteract of administrative counterpart is a right of "hidden danger",and we must strengthen legal regulation after the system is safeguards.On the one hand,it is necessary to clear the legal boundary of the right of resistance of the administrative relative,that is,the boundary of the legal prohibition,the boundary of the legitimate rights and interests of others and the boundary of the administrative law order.On the other hand,the concept of "resisting when" should be introduced in judicial trial,and the definition of "resistance to the right" should be clearly defined,and the proper exercise of resistance to the right of resistance,the act of resistance and other illegal acts should be strictly distinguished,so that the law can be correctly applied and the corresponding legal responsibility is determined.Once the relative person's resistance goes beyond the legal limit and evolves into a criminal act,it should be completely stripped from the relative person's legitimate resistance and the resistance,and strictly investigate the responsibility according to law,and reduce the negative effect of the resistance on the administrative authority and the legal order to the maximum extent,and reach the civil and administrative efficiency.The substantive balance.