On The Judicial Review Of Approved Administrative Reply

The “approved administrative reply” can be legally expressed as “approval”,“permission”,“agree”,“authorize” and etc.It is characterized by the fact that higher-level administrative body have the authority to make decisions actually,while the lower-level administrative bodies are responsible externally.It is easy to confuse with the instructional approval,the administrative behavior that requires subordinate preliminary examination,and the applicant's opinion.The core of the judgment is that the higher-level administrative bodies have the authority to decide administrative affairs.As one of the internal administrative activities,the approved administrative reply has always been excluded from judicial review.Since the No.22 guiding case was published by Supreme People's Court,some of approved administrative reply cases can be judicial reviewed with the theory of externalization.However,at present,because the court has not formed a high consensus on the theory of externalization,the number of the approved administrative reply cases that have been included in judicial review is still a minority.In the current judicial practice,the approved administrative reply cases mainly involve state-owned land reserves,land expropriation and expropriation approval,production safety supervision,large-scale enterprise economic disputes,changes in national key projects,use of villagers' homesteads,investment in sea areas,transformation of sheds and households,andrevolutions.Martyr title conferred on other aspects.Especially in the field of land and production safety supervision,the number of cases is very large.And the forms of administrative actions it embodies are diverse,including administrative penalties,licenses,confirmations and other internal administrative acts,the approved administrative reply cases have obvious "triangular structures",that is,the upper and lower levels of the administrative organs of administrative counterparts and "work relations".At present,the externalization theory is widely used in practice and academic as a weapon to piece the actionability of internal behavior.However,there is still a lot of controversy on specific standards.However,for the judicial review of the review and approval of class approval,the application of the theory of externalization does not solve the problem of inconsistency of power and responsibility.In the face of theoretical deficiencies,the “approval authority is the reconsideration respondent” in judicial practice,in some cases.Limited use of "co-defend" and other programs in response to real-life rights relief needs.This kind of "head-to-head treatment" model is pragmatic,resulting in overall confusion.Inspecting the theory and practice in Germany and Taiwan,due to the constraint of external validity elements in the traditional administrative behavior theory,the relative person can only sue the final administrative behavior in the multi-stage administrative behavior.Regardless of Germany or Taiwan,in recent years,several methods of "external validity" of administrative actions have been adopted.Among them,if the participating agencies are legally the sole competent authority for the decision,they have the power to independently review the decision of the dispute.For the final stage of behavior agencies should be respected(cannot be reviewed)can be identified as an independent administrative act directly into the proceedings.For judicial review ofapproved administrative reply administrative cases,China's theory and practice have neither introduced a "attached review system" nor formed a "direct lawsuit system." Instead,they have grown up with a "common defendant system." Analyze the three kinds of review modes.The “attached review system” is used as a written review,and the review effect is greatly compromised because thehigher-level approval agency is not a litigation participant.The "direct litigation system" totally abandons the nominal system of litigation and conflicts with our country's rights relief system.The "joint-accused system" can effectively solve the difficulties encountered in the approval of approved cases.It also has sufficient legal support and should be extended to the approval cases in all fields.