Study On The Justiciability Of Procedural Behavior

The similarities between no.22 and no.69 guiding cases issued by the supreme people's court are that the ACTS of administrative subjects involved in the cases are immature administrative ACTS and procedural ACTS of administrative subjects,but the differences are completely opposite judgment results,one is not justiciable,the other is justiciable.The former actually represents the general view of judicial practice,while the latter is an exception.This leads to the administrative subject's procedural behavior is justiciable and under what circumstances has the justiciable research topic.By collecting relevant judicial cases and books,papers,even most basically called procedural behavior of administrative subject procedural administrative behavior,the paper first questioned for procedural administrative behavior,through the analysis of the constitutive requirements of administrative behavior,the paper think that procedural behavior does not constitute the administrative behavior of administrative body.In the case that the concept of administrative act is not unified,this paper summarizes several elements of the establishment of administrative act by summarizing and analyzing,so as to judge that procedural act of administrative subject does not constitute administrative act due to the lack of one of the elements of administrative act.As for whether the procedural behavior of the administrative subject is justiciable or not,China's judicial attitude is not justiciable in principle,but in exceptional cases.The author thinks that the administrative main body's procedural act is not actionable or administrative act v can be exceptions,but the administrative body of the procedural act doesn't constitute administrative behavior,how to talk to Sue,therefore the administrative subject procedural act in principle has not actionable,in achieve substantial effect the parties rights and obligations relations are actionable.The litigability of the administrative subject is actually the problem of the scope and depth of judicial power's involvement in the executive power,which is the result of many value measures and games.It is necessary to seek a relatively stable legal form in the ever-changing social form.In addition to the introduction,this paper is divided into three chapters.The first chapter takes the concept of administrative subject's procedural behavior as the entry point to explore whether the procedural behavior of administrative subject constitutes administrative behavior.Firstly,it clarifies the concept of "birth and growth" of procedural behavior of administrative subject.Secondly,it explores what is administrative act and analyzes the connotation and constitutive elements of administrative act.At last,it demonstrates the viewpoint of this paper,that is,administrative subject's procedural behavior is non-administrative behavior.Chapter two probes into the litigability of administrative subject's procedural behavior.By reading a large number of published judicial cases,this paper summarizes China's judicial attitude on the litigability of administrative subject's procedural behavior,that is,the principle of administrative subject's procedural behavior is not litigable,but is litigable under certain circumstances.Combined with the judicial dilemma of procedural behavior justiciability and case summary,it can be found that China generally adopts two ways to analyze the justiciability of procedural behavior,one is that procedural behavior is not mature,so it is not justiciable,the other is that procedural behavior does not constitute administrative behavior,so it is not justiciable.The third chapter puts forward the consummation conception aiming at our country about the administrative subject procedural behavior litigability present situation.Since China has introduced the concept of administrative act and adopted the German model of administrative act,we should continue to follow the model of administrative act,clearly define the connotation of administrative act,and take the principle of maturity as a supplementary explanation.