On Judicial Review Standards Of Administrative Promise

With the rise of the cooperative governance model,the application of emerging administrative actions such as administrative promises have become more and more frequent,and it can be found in various fields such as investment attraction,land acquisition compensation,market concessions and talent introduction.As early as 2004,in the "Notice on Regulating the Cases of Administrative Cases" issued by the Supreme People's Court([2004] No.2),the administrative promise was regarded as a formalized administrative act,which was listed as one of the administrative cases.Therefore,the administrative promised to obtain an independent status.However,China's administrative promises and its judicial review system have not been established in this regard,and even have not yet formed a framework.Today,basic issues such as the concept,nature,behavioral structure,judicial review rules and review standards of administrative promises are It is still unclear.The widespread application of administrative promises is accompanied by problems such as the increase in the number of disputes caused by promises of non-fulfilment,which leads to the intensification of conflicts between the executive authorities and the counterparts,and the tension between the administrative agencies crisis.The first chapter is the basic theoretical part of this paper.The goal is to clarify the key concepts involved in the paper.The administrative promise is a kind of administrative behavior with a unilateral expression for a specific or unspecified administrative counterpart,which is structurally a "promising + response" compound behavior pattern.Based on the complexity of the administrative promised behavior structure and the lack of legal basis,the general review criteria of legality and rationality are difficult to directly apply to administrative promise cases,and the necessity of refining the administrative promised judicial review standards is highlighted.A set of detailed administrative promises of judicial review standards will be of great value in protecting the legitimate rights and interests of the relatives,achieving the goal of building a credible government,creating a good business environment,and helping the courts accurately refer cases.The second chapter is the part of the problem in this paper.The goal is to find out the problems and reasons in the administrative promise of judicial practice through the analysis of typical cases.There are two core problems: First,there is no unified trial rulefor administrative promise cases.In the face of administrative promises made in the form of normative documents,some courts use them as the content of examination for legality determination,while some courts default administrative promises.The behavior itself has the status of “legal source”,and the review that skips this part directly enters the review idea of judging whether the relative person's behavior conforms to the promised provision;secondly,the content of the review is unknown,the basis for review is lacking,and the administrative contract and administrative promise are mixed.The reason is that the courts have also presented a great standard of non-uniformity in the trial of such cases,which indicates that the judicial review standards of administrative promises need to be further refined,combed and improved.The administrative promised review standard is a series of comprehensive standards,and all aspects of the administrative promise from formation to implementation should be judged in the litigation process.On this basis,the judicial review standards of administrative promises should be divided into three aspects: premise judgment,qualitative judgment and remediation judgment.The third chapter "premise the premise of administrative promise" is the first review standard proposed in this paper to solve the problem of whether the administrative promise should be fulfilled.The object of examination is the effectiveness of the administrative promise of legal relationship.The complete administrative promise legal relationship consists of the “ promise ” made by the administrative organ and the“response” made by the administrative counterpart.When a specific fact occurs,the administrative promise legal relationship will occur from “abstract” to “specific”.In the logical transformation,the court should further determine whether the legal relationship containing the specific rights and obligations has been formed on the basis of judging that the two acts are legal and effective,which constitutes the premise of the subsequent non-compliance behavior review.The criteria for reviewing the promised behavior mainly include whether it is legal,whether it conforms to the principle of good faith,whether it violates the prohibition of the law,and the legality of the administrative promise,the legality review only follows the minimum legal retention principle;The standards of conduct review mainly include whether it is legal,whether it meets the requirements of the promised requirements,and whether it is honest and trustworthy.The fourth chapter "Qualitative Judgment of Administrative Promise" is the second review standard proposed in this paper.It solves the problem of whether the administrative promised non-compliance is illegal.The object of examination is the actual performance of the administrative promise.Since then,the court has transferred to the review of the "statutory duty",that is,the administrative promise made by theadministrative organ belongs to its own obligations,which essentially constitutes one of its sources of statutory duties.Therefore,it is illegal to perform the promise without failing to perform.behavior.The non-performance mainly includes two forms: unrealistic performance and not actually fulfilled.The former's judicial review focuses on the formal judgment of whether the administrative organ is refusing or delaying performance,while the latter mainly judges the administrative agency's performance.Whether the legal effect of the act is complete.The fifth chapter "Remediation of administrative promises" is the third review standard proposed in this paper.It solves the problem of relief for the relative rights and interests of the relatives.The object of examination is the actual damage suffered by the relative person and the degree of damage.According to the "legal effect of the promised act","the legal effect of the promise of unfulfilled conduct" and the three specific criteria of "continue to perform the actual meaning",the judicial relief path should be comprehensively judged,mainly: ordering the performance(still Subject to performance),make administrative compensation or compensation(when it is no longer possible)and take remedial measures.At the same time,the change judgment should also have room for application in the administrative promise case.