A Study On The Justiciability Of The Administrative Prior Response Act

As a kind of administrative act,the administrative reply beforehand has been applied in customs law and tax law,especially in the field of tax law.However,this is rarely mentioned in the general summary of administrative law.The customs administrative ruling is the first formal legislation in China's administrative prior reply,and the advance taxation ruling system has developed rapidly in recent years,and discussions about its positioning in the administrative law are also in full swing.The research on the standardization of administrative replies in advance is of great significance for deepening the study of administrative law in China and promoting the construction of administrative legalization in China.In practice,the nature of the pre-administrative replies has not yet been unified.Some consider him as an administrative contract,administrative guidance,administrative promise,etc.This article takes the perspective of tax pre-determination and the knowledge of comparative law to define the nature of administrative pre-reply behavior as administrative commitment.Furthermore,it sorted out the legislation of scattered tax replies in advance in various places,and interpreted the provisions of the "Revision Draft of the Tax Administration Law(Draft for Comments)" in combination with four practical cases.The suability of the administrative prior replyaction is inseparable from the principle of trust protection in the administrative law.Through the elaboration of the relationship between the trust protection principle and the administrative prior reply,it analyzes its binding force on administrative organs and administrative counterparts.Regarding the question of whether the administrative prior response is procedural or substantive,this article uses two criteria to determine whether the administrative pre-response has produced a substantive legal effect,and the second is whether the administrative pre-response has led to the end of administrative procedures Substantial legal effects or actually leading to the end of administrative procedures are substantive actions,otherwise they are procedural actions.To study the suability of the administrative response beforehand,the first thing is to discuss whether its administrative action will actually affect the rights and obligations of the administrative counterpart.Furthermore,it is clear whether the administrative prior response is within the scope of the administrative litigation,and the protection norm theory is used to analyze whether the party and the administrative action have a legal interest,that is,the investigation of the plaintiff's qualification.The binding issue of administrative reply beforehand involves the effectiveness,invalidity,and effectiveness of the response.In particular,in the case where the administrative response beforehand can be divided,its validity determination also involves the issue of partial invalidity and partial revocation.In this regard,the key is to distinguish whether the act is separable.Under the premise of separability,the effectiveness of the reply act can be regarded as partially invalid and partially revocable.The remedies for administrative prior response can be divided into administrative reconsideration relief and administrative litigation relief.Administrative reconsideration relief is known for its professionalism and efficiency.The remedy for reconsideration before administrative reply can adopt the method of pre-consideration.On the one hand,it can give full play to the professional advantages of administrative agencies in the professional field and make the first judgment;on the other hand,it can reduce the court's litigation burden and allow the court to focus on legality review.Administrative litigation relief can be divided into three aspects: firstly,it should be based on the legal norms of administrative prior reply,and distinguish it from general administrative acts;secondly,the procedure design of the administrative prior reply system should be synchronized with the legal norms of administrative prior reply To proceed,we can refer to the system design of administrative licensing;finally,we must strengthen the type construction of administrative litigation in order to achieve and meet the pursuit and needs of the legalization of administrative prior reply.