A Study On Litigation To Confirm The Invalidity Of Administrative Actions

Since the Supreme People's Court issued the Interpretation of Several Issues concerning the Implementation of the Administrative Procedure Law of the People's Republic of China in 2000,the invalid affirmation judgment has officially become a form of judgment in administrative litigation in China.There is no division of litigation types in China's administrative litigation law,but different judgment methods are provided in the litigation law,which affects the operation of the entire litigation system from the end of the litigation procedure.However,invalid administrative actions are different from the general illegal administrative actions.If the system of invalid affirmation litigation for the administrative actions(hereinafter referred to as "the invalid affirmation litigation")is forced to apply other litigation systems,it is not only impossible to agree on a theoretical level,but also conceals the independent value of invalid affirmation litigation,and it is difficult to exert its protection function.Starting with the invalid administrative actions,this paper explores the jurisprudential basis of the invalid affirmation litigation,combs the relevant institutional arrangements at home and abroad,and finally proposes suggestions for improving China's legal system for the invalid affirmation litigation in light of the problems reflected in our judicial practice.In addition to the introduction and conclusion,this paper is divided into four chapters,and its brief content is as follows:The first chapter is an overview of the invalid affirmation litigation,combing the concept,characteristics and jurisprudential basis of it.First of all,based on the analysis of the concepts of the invalid administrative action and the administrative affirmation litigation,the paper obtains the concept of the invalid affirmation litigation,and analyzes the characteristics of the invalid affirmation litigation compared with the revocation litigation,that is,the inapplicability of the time limit for prosecution,the declarability of the judgment content and the necessity of the interests of the litigation.Then,it points out the theoretical basis for the invalid affirmation litigation.The first is the theory of the right of resistance,the system of invalid administrative actions is the inheritance of the theory of the right of resistance at the constitutional level in the administrative law level.The second is that the theory of limited presumptive legality revises the traditional theory of absolute presumptive legality.Therefore,invalid administrative actions do not have presumptive legality,and there is no room for the application of the revocation litigation to exclude public power.Instead,the factual adverse burden formed by invalid administrative actions should be ruled out by the invalid affirmation litigation.The second chapter is the analysis of the system of the invalid affirmation litigation inforeign countries and Taiwan.This chapter mainly analyzes the academic viewpoints and legislation situation of the invalid affirmation litigation in Germany,Japan and Taiwan from four aspects: the standard of confirming invalid administrative action,the applicability of supplementary principle,the existence of pre-procedure and the applicability of the time limit for prosecution.It also compares the relevant systems of Germany,Japan and Taiwan horizontally in order to provide a reference for the improvement of China's invalid affirmation litigation system.The third chapter is the history and current situation of the invalid affirmation litigation in China.First of all,this chapter combs the legislative process of the invalid affirmation litigation in our country,then makes an empirical analysis of China's judicial practice and points out the outstanding problems,including the procedural disorder in the handling of the plaintiff's litigation request,inconsistency in the application of the time limit for prosecution,and the confusion of the application of the invalid affirmation judgment.It reflects the lack of legislation on the application rules of the time limit for prosecution and the unclear application standards of the invalid affirmation judgment.The fourth chapter is the analysis of the positioning and the improvement of the specific system of the invalid confirmation litigation system in China.First of all,in the selection of the relationship between the invalid affirmation litigation and the revocation litigation,this chapter points out that there is no room for legal complementarity,and,based on the consideration of maximizing the protection of the plaintiff's rights and interests,the actual complementarity mode should be adopted.Secondly,aiming at the problems pointed out in the third chapter,based on the factual supplementary,and referring to the system arrangement of the overseas and Taiwan,I put forward my suggestions on the perfection of China's invalid affirmation litigation systems.The first is to establish the pre-procedure for the confirmation of the organ making the alleged administrative action,the second is to clarify that the time limit for prosecution is not applicable,the third is that the plaintiff bears the burden of proof of "invalidity",and the fourth is to further clarify the applicable standards of the invalid affirmation judgment.