| With the complexity of modern administrative affairs,the division of administrative division and the construction of administrative organizations are increasingly refined and diversified,and the administrative process begins to undergo structural changes.Administrative activities are not only made by an administrative subject alone,but also participated by multiple organs.In addition,"related administrative actions",which are staged and continuous with context,begin to appear in people’s vision.When the legality of the administrative act affects the legality of the subsequent administrative act,and the preceding administrative act itself cannot constitute the object of the administrative action,there will be a trial dilemma.Whether the court to lead the administrative behavior,and how to review all have their own answer,did not form a unified logical structure and the refeee path,in this context,how to construct the front administrative act judicial review into the road,always supplement and correction theory of Xia Lou,improve the timeliness of administrative relative person’s rights and interests become inevitable problems.This paper is divided into four parts to study the judicial application of pre-administrative act:The first part is the summary of administrative action.Looking back to the theoretical origin,the modern public administration concept and the development of welfare state make the traditional administrative behavior paradigm theory with the core of administrative behavior face many challenges.The introduction of administrative process theory makes us pay more attention to the whole dynamic process chain formed when administrative behavior is made.After summarizing and combing the existing theory of pre-administrative behavior,the paper clarifies its meaning based on the description of its elements.Pre-administrative act can be divided into pre-administrative act in multi-stage administrative act and pre-administrative act in multi-stage administrative procedure.The second part is based on the judicial oriented,judicial practice is no stranger to front of judicial review of administrative act,but a different case in court to take positions and arguments,and thus formed the no form of review,review and comprehensive review of three methods for review,this way of judicial review of diversity may result in instability of the rule of law,is difficult to produce the consequences such as stabilizing expectations.On this basis,the hidden obstacles and value conflicts are analyzed.The third part is the theoretical construction of pre-administrative act.Taking the purpose of administrative litigation as the macro basis,and guided by the principle of maturity,when the preceding acts in the multi-stage administrative acts produce "externalization of the effect" and have a practical impact on the rights and obligations of the parties,the litigability of the preceding acts has a breakthrough space.In the multi-stage administrative procedure,the behaviors in each stage are jussible,but when the current behaviors cannot be sued because of the legal cover system,the illegality inheritance theory is applied as the consideration of the right relief and litigation economy after removing the barriers of the public determination and the form continuance of administrative behaviors.The fourth part is the way of judicial review of pre-administrative act.The judicial review mode of pre-administrative act can be divided into formal review and substantive review according to the situation.The judicial review should focus on the subject and procedure of the preceding administrative act.The establishment of judicial review standards should follow the principle of legality and rationality.The result of judicial review should be evaluated in a compound way,and the legal effect of the preceding administrative act should be clarified in the main text of the judgment document. |
