Research On The Illegal Inheritance Of Administrative Acts

With the increasing complexity of social affairs and the transformation of social structure,more and more administrative activities requires the participation of other administrative organs to achieve at different stages,multi-stage administrative action and compound administrative action have become the normality of modern administration.The traditional judicial review mode analyzes the legal effect of a single administrative action from a one-sided and isolated perspective.It ignores the intrinsic relevance of the behavior of administrative organs in the course of exercising their functions and powers.It leads to the right relief channel is not clear and the administrative dispute is not solved thoroughly.The question of illegal inheritance in the administrative action is that whether courts can review the legality of foregoing administrative action in the litigation to revoke of succeeding action after foregoing administrative action cannot be sued.In the face of continuous administrative activities,it is necessary for the court to make a positive response to this problem.The concept of “Illegal inheritance” is quoted from Germany,Japan and other countries,which has not been fully studied by the administrative law circle in China,and contradictory judgment and conclusion often appear in the trial practice.Different judicial positions reflect different views on “Illegal inheritance” and the choice of value conflict,so it is necessary to analyze and discuss it.Subject to the truncation effect of illegality of administrative act under the theory of the determination of traditional administrative act in China and the administrative procedure law stipulates the time limit for prosecution and the scope of accepting cases,the administrative counterpart may not be able to directly appeal for cancellation of antecedent action for reasons not attributable to itself.It is impossible to claim the legality of the prior act in the subsequent action.The remedy right of administrative counterpart cannot be guaranteed.In this case,it is necessary to apply the theory of illegality inheritance.This theory is of great significance for perfecting the judicial review system and realizing the substantive settlement of disputes.This paper studies the inheritance of illegality of administrative actions by means of literature search,comparative study and case analysis.First,starting from the concept of illegality inheritance of administrative act.This paper introduces the theoretical basis and related theories of illegality inheritance.It also introduces the need for theory of inheritance of illegality of administrative act in China.The second,this paper introduces the development history and judgment basis of Japan's illegality inheritance theory for explain the theory systematically.By sorting out and summarizing the contents of the typical cases in China's trial practice,the differences between different courts on the illegal inheritance cases and the theoretical disputes are shown.The last,to reduce arbitrariness in case judgment,this paper summarizes the basic structure of inheritance of illegality of administrative act based on the thought of judgment of existing cases.This paper combines the substantive law and procedural law to put forward the institutional countermeasures to the inheritance of illegality.It is hoped that the degree of protection of relative person's right of relief can be strengthened and a way can be opened up for our country to inherit the illegality of administrative act.