Research On Judicial Determination Of Invalid Administrative Acts

Article 75 of the Administrative Procedure Law stipulates that "Administrative acts have major and obvious illegal situations,such as the implementation subject does not have the qualification of administrative subject or has no basis.If the plaintiff applies to confirm that the administrative act is invalid,the people’s court shall make a judgment confirming that the administrative act is invalid." In 2018,Article 99 of the Interpretation of the Supreme People’s Court on the Application of the Administrative Procedure Law of the People’s Republic of China further stipulates: "Any of the following circumstances shall be deemed to be’ significant and obviously illegal’ as stipulated in Article 75 of the Administrative Procedure Law:(1)the subject of administrative act does not have the qualification of administrative subject;(2)There is no legal basis for administrative acts that derogate from rights or increase obligations;(3)the content of the administrative act is objectively impossible to implement;(4)Other major and obviously illegal circumstances." As a result,the judicial determination of invalid administrative acts has a more detailed legal basis.However,there are still some problems in these regulations,such as unclear regulations,vague concepts and difficult to grasp in practice,which need in-depth study by the theoretical circle to enhance its operability.In addition to the introduction and conclusion,this article is divided into four parts:The first part is the judicial confirmation that "the implementing subject does not have the qualification of administrative subject".Academic circles have two completely different views on "the implementer does not have the qualification of administrative subject".From the perspective of legal theory and judicial practice,it is more reasonable to understand it as "the implementer does not have the corresponding authority".In the judicial determination of "the implementer does not have the qualification of administrative subject",attention should be paid to distinguish between invalid administrative acts and administrative acts that are not established,and the difference between "no authority" and "exceeding authority" of the implementer.The second part is the judicial determination of "no basis" for administrative acts."No basis" emphasizes "no legal basis"."No basis" can be divided into "no substantive law basis" and "no procedural law basis".In judicial determination of "no basis" for administrative acts,attention should be paid to distinguishing "no basis" from "insufficient main evidence","no basis" from "error in application of law" and "major procedural defects" from "general procedural defects",and emphasizing that "no basis" is only applicable to invalid determination of burdensome administrative acts.The third part is the judicial confirmation of "the content of administrative act is objectively impossible to implement".There are many viewpoints on the classification of "objectively impossible to implement".After sorting out and analyzing the existing viewpoints,the "objectively impossible to implement" is divided into object impossibility,time limit impossibility and self impossibility according to the content elements of administrative act.The judicial determination of "the content of administrative act is objectively impossible to implement" should emphasize that the administrative counterpart has no fault subjectively,and should also pay attention to distinguish the differences between "objectively impossible to implement","administrative impossibility" and "administrative omission".The fourth part is the judicial determination of "other major and obvious violations of the law".In judicial practice,"other major and obviously illegal" situations mainly include:those that damage major public interests,do not conform to the statutory written form,invalid special laws and regulations,and those that the registration authority fails to fulfill its obligation of prudence and makes registration.For the invalid identification of "other major and obviously illegal" acts,attention should be paid to the fact that "major and obviously illegal" refers to the illegal acts that can be identified and judged by common rational people.At the same time,it is also necessary to correctly distinguish "other major and obviously illegal" from "obviously improper" and accurately understand the connotation of "public interest".