Research On Judicial Review Of Administrative Risk Warning

Administrative risk warning refers to the behavior that the administrative organ believes that a certain behavior or thing may bring danger or damage,and after risk assessment,it warns the risk maker,risk behavior,or risk thing,so that the public can avoid the risk.As an emerging risk regulation method,administrative risk warning has already existed in practice.When an administrative risk warns against an illegal act or omission,the rights and obligations of the administrative counterpart will be violated.However,under the existing framework,it is difficult or even impossible for the administrative counterpart to obtain judicial relief through judicial review.The primary reason is that there is a legal dispute in the administrative risk warning,which leads to an actionable dispute.If the administrative risk warning is actionable,there will be four problems: first,the subject of administrative risk warning under the current law has different rights and responsibilities and lack of responsibility;second,the burden of proof on risk facts in judicial review is difficult.distribution;third,the judicial review method for administrative risk warnings against illegal acts is insufficient;fourth,the existence of discretionary powers in administrative risk warnings makes judicial review of administrative risk warnings extremely difficult.This paper studies the administrative risk warning in judicial review from four aspects: First,the definition of administrative risk warning.Administrative risk warnings and public warnings,consumer warnings,food safety risk warnings and other expressions are a relationship of competition and cooperation rather than a relationship of difference.There are differences between administrative risk warnings and administrative actions such as government information disclosure,administrative guidance,and administrative penalties,and have their own independent value.Second,the determination of the inclusion of administrative risk warnings in judicial review.The legal nature of administrative risk warnings should be defined according to their types."Other-related administrative risk warnings" belong to administrative legal acts and are actionable,and "non-other-related administrative risk warnings" belong to administrative factual acts.When it affects the rights and interests of the counterparty,it should be actionable.Third,the responsibility of administrative risk warning in judicial review is determined.The subject of the external responsibility of the administrative risk warning is the subject of the release,and the subject of responsibility enjoys the right to be exempted from liability under four conditions: the objective technical conditions,the personal illegal behavior of the internal staff of the administrative organ,the information that has been marked with uncertain risks,and the fault of the victim.In terms of the burden of proof,different burdens of proof can be divided according to the legal nature of the administrative risk warning.The administrative subject should still bear the burden of proof for the administrative risk warning of the nature of the administrative legal act,but it can reduce the standard of proof and the administrative risk of the nature of the administrative factual act.The main burden of proof for a warning shall be on the plaintiff.Fourth,the judicial review method of administrative risk warning of illegal actions and omissions.In addition to substantive review and procedural review,the judicial review method for administrative risk warning illegal acts should be supplemented by procedural review.The judicial review method of administrative risk warning and omission should be based on the "administrative discretion shrinkage theory" as its theoretical support,from the subjective standards of whether the administrative agency knows and ignores the risk,whether the public is aware of the risk and the behavioral standards that cause or expand the consequences of damage,administrative Whether there is a causal relationship between the risk warning and the damage result is based on three aspects of the causal relationship standard to judge the establishment of the administrative risk warning inaction.