Study On Judgments Of Confirming Unlawful Acts In Administrative Litigation

The appearance of judgments of confirming unlawful acts in administrative litigation is based on the practical needs of administrative litigation and its own characteristics.There is no provision about the judgments of confirming unlawful acts in administrative procedure law formulated in 1989.Until 2000,the Supreme People's court added its content in judicial interpretation to meet the needs of trial practice.The revised administrative procedure law in 2014 stipulates the judgments of confirming unlawful acts in Article 74,which makes it rise from judicial interpretation to legal provisions,and endows the judgments of confirming unlawful acts with higher legal effect.However,due to the complexity of administrative disputes and the lag of the law itself,with the continuous enrichment of trial practice,there are also some problems in the norms of judgments of confirming unlawful acts in administrative litigation and its application of law.This thesis makes the norms of judgments of confirming unlawful acts in administrative litigation and its application of law as the main clue to discuss.On the one hand,the unclear legislation provisions lead to arbitrary recognition of “national interests” and “social public interests”,as well as the legislative repetitions of “containing no content to be revoked” make them possible to understand as this meaning that “the revocation of administrative decisions will cause great damage to national interests and social public interests” and “the defendant changes his original illegal administrative acts”;on the other hand,lacing unified application standards of “minor procedural violations” lead to a new approach in judicial practice,which the courts neither revoke the administrative decisions nor confirm unlawful acts,but choose to reject the claims.Due to the weak relief of judgments of confirming unlawful acts and the weak position of judicial power,there exist other problems,such as the slight punishment to the administrative organ and the pocket application in judicial practice.This thesis attempts to solve them from the following three perspectives.Firstly,through the discussion of judgments of confirming unlawful acts systems in foreign countries,this thesis puts forward the introduction of ex-ante relief to improve the weak position of judicial power by the early intervention of judicial organs in administrative activities,so as to supervise the executive organs that perform their functions and powers according to law;and the definition of national interests through the overall elements,as well as social public interests by publicity and sociality elements to strengthen the protection of personal interests.Secondly,combining with the characteristics of domestic trial practice,this thesis attempts to distinguish the legal application of minor minor procedural violations from that of other procedural violations,and introduce "defects of narrow sense procedure" to give a new standard of four quartering division of administrative procedure defects.Thirdly,Third,returning to judgments of confirming unlawful acts in administrative litigation itself,this thesis tries to sort out the non-revocable content through the fact level of "cannot be revoked" and the legal level of "should not be revoked" in order to improve our judgments systems of confirming unlawful acts in administrative litigation.