| Pre-administrative actions refer to administrative actions that are in the pre-order or previous stage in a series of complex administrative actions,which correspond to subsequent administrative actions.These plural administrative actions are respectively made by multiple administrative agencies,one after the other.Successively,the legal effects have been linked together,and together they have contributed to the completion of an administrative matter.This combination of legal effects enables the issue of the legality review of pre-administrative acts.If the administrative counterpart in the administrative lawsuit filed for subsequent administrative actions believes that the flaws in the pre-administrative action may affect the legality of the administrative action being sued,and then claims to review the legitimacy of the pre-administrative action,how should the court respond? ? The court has two problems:first,in the lawsuit against subsequent administrative actions,whether the court should review the legality of the pre-administrative action;second,if it should be reviewed,how should the court The issue of reviewing the legality of the conduct.The above two problems together constitute the issue of the legality review of pre-administrative actionsUnfortunately,the existing legislative provisions rarely address the issue of the review of the legitimacy of pre-administrative acts,which has led to a rather contradictory situation in theory and practice.On the one hand,there has been a fierce conflict between supporters and oppositions on the issue of whether the legitimacy of pre-administrative acts should be reviewed,and the corresponding adjudication practice also reflects this situation;on the other hand,in supporting the review of pre-administrative actions,Inside the viewpoint of the legitimacy of conduct,a new round of debate has been launched around the choice of specific review modes.The dispute mainly involves three review modes: formal review,substantive review,and evidence review.Each of them has a certain reason to support it.And all three have been selectively put into concrete practice,and finally formed a chaotic situation of different review modes applicable to similar cases.This article selects a case involving the review of the legitimacy of pre-administrative acts.In this case,the parties engaged in a fierce debate on whether the legitimacy of pre-administrative acts should be reviewed and formed two opposing views.The reasons of the two factions also contain certain basic values of administrative law and related administrative law theories,so that their respective views can reflect certain merits,but arethese reasons that involve basic values and theories sufficient? Supporting the views of all parties requires further analysis.Through this case,we can have a better understanding of the issue of the legality review of pre-administrative actions,and put forward ideas for specific implementation issues on this basis.The main content of this article is divided into three parts:Part I: Describe the case,point out the focus of the dispute,and set out the reasons and basis for the two-level court decision.This section mainly introduces the case in detail,the purpose is to show the development of the case comprehensively and completely,and to lay the foundation for the second part of the legal issues involved in the case and further analysis.Part II: Reveal the question reflected in this case,namely the question of whether to review the legality of pre-administrative actions.By summarizing the reasons why all parties support or oppose the review of the legitimacy of pre-administrative administrative actions,the basic values ? ? and related theories in the field of administrative law contained in the reasons that support their views are extracted,and the reasons for these reasons are analyzed.Persuasive.Then it summed up the jurisprudence game involved in two diametrically opposite views on the issue of whether the legitimacy of pre-administrative action should be reviewed,and from the purpose of practice,analyzed whether the jurisprudence representing the views of the two factions was sufficient to guide practice Whether it can meet the actual needs of the right to relief,and then further explore how to improve and develop the jurisprudence to meet the urgent needs of practice if the jurisprudence involved does not achieve its due effect.Part III: On the basis of recognizing that the legitimacy of pre-administrative acts should be reviewed,based on the needs of practice,it explores the review intensity that should be selected for legality review.By introducing the three most widely discussed review modes in the theoretical and practical circles,analyze respectively the review strengths of the three review modes and their respective advantages and disadvantages,and then further discuss the direct and deep causes behind the dispute that bring about the choice of this review mode,pointing out that the shallow reason lies in the ambiguity of the existing regulations leading to inconsistent understanding and unclear understanding of the connotation of legality,and the deep reason lies in the conflict between judicial power and executive power.As is discovered that it is difficult to find a balance between the two in practice.Then,based on the analysis of the reasons,the factors that must be considered when selecting a specific review mode are pointed out,and these considerations are used to analyze which of the three specificreview modes are suitable for the practice of pre-administrative legality review,which will help determine the appropriate legality review mode in practice.Part IV: Explore some specific implementation issues that may be involved in the practical operation of the legality review of pre-administrative actions,and put forward my own ideas in combination with relevant administrative law theories,which mainly involve the review prerequisites,review effects,etc.of the legality review.The ultimate goal is to make the review of the legality of pre-administrative actions more operable and more effective.Finally,in order to better protect the legitimate rights and interests of administrative counterparts,the issue of the possibility of separate litigation over pre-administrative actions was derived,and separate litigation requires more than just expanding the scope of administrative litigation.Under the circumstances,the advantages of administrative reconsideration should be brought into full play,so that the administrative counterpart’s remedy for pre-administrative actions can be achieved through the connection between administrative reconsideration and administrative litigation.Together with the relief methods for the legitimacy of administrative acts,a relatively complete relief system can be formed,thereby minimizing the difficulty for administrative counterparts in seeking rights relief.The issue of reviewing the legality of pre-administrative acts is an inevitable problem that arises with the administrative counterpart’s urgent need for the right to relief in the context of increasingly complicated administrative affairs.This article believes that it is necessary to review the legitimacy of pre-administrative actions in the administrative litigation of subsequent administrative actions,but the corresponding legitimacy review should also strictly grasp the specific implementation methods and effects to make the pre-administrative actions legal.Legitimate review is not only operable,but also can really meetthe practical purpose of relieving the legitimate rights and interests of administrative counterparts. |
