Research On The Subjective And Objective Aspect Element Of False Administrative Guidances

Administrative guidance,a kind of advanced administrative body,which belongs to administrative factual behavior,makes excellent additions to traditional administration mode based on mandatory behaviors and fully embodies the idea of democratic administration.But there are many unsolved flaws in the practice of administrative guidance which causes many problems and makes administrative guidance into"administrative misguidance".The equity of administrative counterpart is damaged.The definition of false administrative guidance is different from administrative guidance.As long as a certain link or factor of administrative guidance is false,it becomes a false administrative guidance.Therefore,this thesis adopts a parallel selection form for the definition of false administrative guidance.In the same way,when discussing the characteristics of the false administrative guidance,it is also possible to have at least one or several items.In practice,because the behavior and motives of the administrative organizations are uncontrollable,the participating entities fail to clarify the relationship,and the legal liability mechanism is imperfect,leading to frequent errors in administrative guidance.Comparing with crimes,different properties of false administrative guidances correspond to different legal liabilities,which just like the independent variable and dependent variable of a function.For further research of the property of false administrative guidances,it is necessary to divide it into several constitutive elements.The subjective aspect and the objective aspect play the most important roles.Subjective aspect mainly reflects the subjective mental state of administrative organizations and is measured by the standard of goodwill and malice.Objective aspect includes behavior,outcome and causality.The subjective aspect and the objective aspect determine the property of false administrative guidances to gether.According to the theory of administrative administration,the theory of administrative justice,the theory of trust protection,the theory of power restriction and the theory of rights and remedies in the basic theory of administrative law,there is a theoretical connection between false administrative guidance and its legal responsibility.From the perspective of aptitude,the false administrative guidance must first be administrative guidance in form,so its error and administrative nature are not contradictory.Secondly,although the administrative guidance is an administrative act of"official and civilian interaction",the traditional "official standard" thinking of China makes the administrative organizations still occupy a dominant position in practice,so the administrative organizations should bear corresponding risks for mistakes.Finally,the administrative guidance can be understood as an inducing act,and the administrative organization should be responsible as the instigator.There are still many gaps in China's accountability and judicial relief for false administrative guidance.This article briefly introduces the administrative guidance judicial relief system of the United States and Japan,and compares it with the domestic situation.It is intended to point out that the advanced systems of the United States and Japan have more merits worthy of domestic reference and learning.At last,this thesis will offer a constructive proposal to the accountability and judicial relief of domestic administrative guidances.First of all,from the perspective of legislation,make full use of the existing legal resources,expand the interpretation,and include the false administrative guidance into the accountability and judicial relief mechanism.Secondly,from the perspective of pre-existing prevention,the administrative guidance is transparent,the relative's right to know is guaranteed,and the occurrence of fraud is reduced.Thirdly,from the perspective of in-matter supervision,the responsibility of the administrative counterparts is clarified,the rights and obligations of the parties in the false administrative guidance and the responsibility distribution mechanism are improved,and the risks of all parties are balanced.Finally,in the perspective of post-relief,we will improve the compensation system for false administrative guidance.