Judicial Review Of Invalid Administrative Acts In China

The new "Administrative Procedure Law" has added a form of judgment that confirms invalidity,which indicates that judicial review of invalid administrative actions in China has entered a new stage.The law clarifies the criteria for invalid administrative behaviors that are“significant and obvious violations of the law”,and lists two specific situations: “the entity does not have the qualifications of the administrative subject” and “there is no basis”,and at the same time,the invalidation of the judgment must be based on the plaintiff's application.The implementation of the new law has promoted the application of invalid judgments in judicial practice,but according to the current situation of practice,there are still many problems.It is mainly manifested in the dilemma of the criteria for the determination of invalid administrative actions,the duration of prosecution and the application of the principle of unanimity.There are four main reasons for this.First of all,the invalidation criteria have legislative flaws.The implementation subject does not have the administrative subject qualification and the unfounded statement is not clear enough,there is a dilemma of understanding,and the scope of the specific and obvious specific examples is too narrow.Secondly,the lack of special procedures and trialrules does not clearly define the time limit for the confirmation of invalid judgments,and cannot be consistent with the value of the prosecution system.Thirdly,there is a disconnect between theory and practice.The mainstream view that invalid administrative behavior is not restricted by the time limit for prosecution cannot effectively resolve the differences in judicial practice.Finally,because there is no unified administrative procedure law,the criteria for identifying invalid administrative actions are scattered in the legal,judicial interpretation and administrative procedures of local people's governments at various levels,which is not conducive to the unification of judicial application.Although the "Judicial Interpretation" of 2018 refines the criteria for determining invalid administrative actions and adds specific cases where "the content of administrative actions is impossible to implement",it has not yet made a clear response to the problems that have already occurred in other practices.To this end,this paper is based on the predicament existing in judicial practice,and draws on the advanced experience of the civil law countries and regions to confirm the invalid litigation system,and provides suggestions for the improvement of judicial review of invalid administrative behavior in China.Refining the specific enumerated invalid administrative act identification standards and broadening the cautiousness of other major and obvious violations;paying attention tothe trial rules of invalid administrative agreements,and taking into account the dual nature of "administrative" and "contractual" The choice of the time limit for prosecution,comprehensive consideration of the special characteristics of invalid administrative actions and the principle of law and stability,the construction of special rules for the prosecution period;the choice of the rules of the law to learn from the provisions of Japan to confirm invalid claims,do not strictly follow The principle of unanimous appeal,in the period of prosecution,no matter what kind of litigation request is filed,the case is revoked.