The Reflection On The Theory And System Of The Resisting Right Of The Administrative Counterpart

Based on the purpose of the protection of reinforced administration on administrative counterpart's rights,domestic scholars commonly regard void administrative actions and the corresponding theories of counterparts' rights to resistance.According to the idea of domestic scholars,on the basis of infringement of law of administrative actions,they can be divided into void administrative actions and revocable administrative actions.Void administrative actions are the ones of severity and apparent infringement of law.Therefore,they are in deficiency of public force,and the counterparts might not obey and may even exercise the rights to resistance directly.Up till now,despite that our national empirical legal system does not regulate the counterparts' rights to resistance on void administrative actions,large part of special laws expressly stipulate void administrative actions or directly rule that counterparts have rights to reject void administrative actions that are critical and infringing the law apparently.However,the well-developed setting of void administrative actions and theories of counterparts' rights to resistance and rights of refusal clearly stipulated by the law almost cannot be realized.On one side,if the counterpart resists an illegal administrative action,he cannot protect his legal rights and even cause a more adverse consequence for himself,even lose his life for that.On the other side,the behaviors of some counterparts who resist administrative actions might directly damage social public benefits and third party's legal rights.The prefixed goal and effects of practice have a large difference in terms of void administrative actions and the related theories and practices of counterparts' rights to resistance.It provides a sufficient reason for us to question,retrospect and discuss the legitimacy and feasibility of theories and system of counterparts' rights to resistance.Administrative counterparts leave a question open as to the legitimacy of the rights to resistance for void administrative actions.Logically,the verdict on void administrative actions is the premise for the counterpart's rights to resistance to void administrative actions.However,if the counterpart exercises the resistance based on his void verdict on void administrative actions,he is then suspected of violating the rule of natural justice for "being the judge of his own case".More than that,domestic scholars hold an academic opinion that counterparts have rights to resistance to void administrative actions.Scholars commonly demonstrate the argumentation from the perspective of strengthening the protection of counterparts' own rights.Nevertheless,they ignore the protection on the public benefits and third party's legal rights behind the public order maintained by administrative actions.Perhaps,owing to that,our national constitution and laws have not yet stipulated the counterparts' rights to resistance to void administrative actions.When it comes to the counterparts' rights to resistance to void administrative actions,it's still doubted on the theoretical legitimacy while there's huge difficulty on institutionalization and operationalization.There's a series of barriers concerning the system during the operation.On one hand,the standard of "being critical and apparently illegal" of void administrative actions is hard to control for people who lack knowledge of laws or tend to benefit themselves.The precise verdict on void administrative actions is difficult to realize.On the other hand,counterpart's rights to resistance refer to exercising behaviors that resist the execution or carry out void administrative actions.Counterparts usually are not capable of or equipped with such behaviors or conditions.If the counterpart confronts the law enforcement officials with violence,he shall impede line of duty or break the law,even receive more unfavorable administrative penalty or criminal penalty.As a result,the theoretical and systematic starting point to protect counterparts' legal rights from the infringement of critical illegal administrative actions is a correct view of value.However,directly endowing the administration with rights to voidate counterparts' rights to resistance but involves measures or approaches of naive Utopian,which does not conform to natural justice or the other principles of rule of law.In order to improve the protection on counterparts' rights to resistance,it shall fully promote three phases before,during and after the cases in the aspect of administrative legislation,administrative procedures,administrative reviews and administrative proceeding.Specifically,we should focus on improving or establishing some important legal systems or rules at present,including consolidating the review on regulatory documents,fully implementing the complete record on administrative enforcement of law,determining the rule for stay of execution of lawsuit.