On The Judicial Review Of Administrative Promises

Under the demands of complex and heavy administrative tasks,the administrative organs are also actively changing the concept of law enforcement,innovating the way of law enforcement,and paying more attention to improving work efficiency and promoting citizens' participation.Administrative promise is the flexible law enforcement mode that the administrative organs have emerged under the background of changing government functions,and plays an important role in enriching administrative law enforcement,encouraging public participation and improving administrative efficiency.Due to the absence of legal provisions and the imperfection of theoretical research,the problems and disputes of administrative promise in its operation and practice emerge one after another,and the judicial review of administrative promise also faces many challenges.However,the maturity of the system and law needs time to temper.When the system and law have not been completed,the regulation of the administrative promise still needs to rely on the final relief of the court.When the performance or non performance of the administrative subject violates the legitimate rights and interests of the administrative counterpart,it is necessary for the judicial organ as the last line of defense to stop loss in time.The purpose of this paper is to study and analyze the trial cases of administrative promise in practice,find out the difficulties in judicial identification,scope of review and judgment mode of the court when examining administrative promise,and probe into its origin,on this basis,try to sort out the perfect suggestions for the judicial review of administrative promise cases.At the beginning of the judicial review of administrative promise,we should take the object,method,form and content of the promise as the identification standard.Secondly,the court should follow certain principles of administrative law in the examination of administrative promise,such as the principle of priority of law,the principle of maturity and the principle of combining comprehensive examination with limited examination.Based on the process characteristics of administrative promise,the traditional formal theory of administrative act has some limitations in the evaluation of the whole picture ofadministrative promise,and the theory of administrative legal relationship which pays attention to the dynamic development just responds to this problem,therefore,the judicial review rules of administrative promise should break through the traditional theory of administrative act form and choose the "double-layer trial structure" based on the administrative legal relationship,that is,to judge the existence of the legal relationship of administrative promise between the disputing parties first,and then determine whether the administrative subject should perform the legal duties of administrative promise.Then in the content of the review,the court should comprehensively review whether the behavior of the administrative counterpart meets the conditions of the promise,whether the administrative promise is legal and whether the administrative subject properly performs the three contents.When the behavior of the administrative counterpart meets the setting conditions of the administrative promise,the legal relationship of the administrative promise is established;when the administrative promise is legal,the administrative subject has the legal duty to perform based on the promise,if the administrative subject fails to perform the obligation of performance promise,the administrative counterpart has the right to request its performance.If the defendant has no reasonable excuse,the judicial organ can make a proper judgment on the reasonable consideration of the boundary between judicial power and administrative power.