On The Review Of The Legality Of Administrative Payment Acts

Administrative payment has increasingly become one of the main ways for the government to perform its service functions and frequently enters the vision of judicial review.However,it is difficult to realize the substantive review of administrative acts and the effective relief of the right to payment in the administrative litigation in China,and the phenomenon of breaking through the established legality review system has emerged in judicial practice,which is mainly reflected in the problems that the object of review is not limited to administrative acts of payment,the basis of review is not limited to laws and regulations,and the intensity of review is not limited to legality.The main reason is that the review object is not limited to the administrative payment act,the review basis is not limited to laws and regulations,the review intensity is not limited to the legality,and the problem that the legality of the administrative payment act and the effectiveness of the relief of the private payment rights cannot be realized,mainly because the administrative payment act has weak legal reservation intensity,the form of the act and the content of the rights and interests are complicated,and the conflict between the legality review and the effectiveness of the dispute resolution,which has special characteristics compared with the traditional order administrative act.The administrative act of administration is special compared with the traditional order administrative act.For these problems,the judicial practice is confusing and inconsistent,and needs to be clarified.According to the existing research on administrative payment review and payment litigation,it is found that there are three possible ways to improve the payment litigation,namely,the subjective right to request review in the German and Japanese payment litigation system,the public and private law act step review in the German administrative litigation,and the way to improve the legality review embodied in the French ultra vires litigation and the full jurisdiction litigation.Among them,the public-private law act step-by-step review is discarded due to its own application defects;subjective claim review contradicts with the basic framework of China’s administrative litigation,and has limited application space,easily leading to the wrong determination of the basis of rights,too much room for subjective interpretation and other problems,and it is difficult to guarantee the legitimacy of the right to payment;relatively speaking,through the guidance of the legal relationship perspective,the existing legality review method can be improved,both In contrast,through the guidance of legal relationship perspective,the improvement of the existing legality review method can not only adhere to the basic principles of China’s administrative litigation,but also strengthen the attention to private rights and interests through the balance and linkage of public and private interests,so it can cover the relief needs of the rights and interests of payment and solve the problem of administrative payment review in a targeted manner,which is feasible.In the specific improvement road,it should be clear that the administrative act of payment as the core object of review,adhere to the basic principles of legality review,and can strengthen the plaintiff’s request for payment to the guidance of legality review.In addition,expand the basis for review of the administrative act of payment,clarify the constitutional norms,subordinate norms,soft law norms and acts with substantive normative effect as the effectiveness of the review grounds,in order to enhance the possibility of the review of the substantive legality of the administrative act of payment.Furthermore,deepen the intensity of the review of the legality of the administrative act of giving,strengthen the discretionary contraction,carry out the review of reasonableness based on the normative interpretation,and strengthen the review of the legality and reasonableness of the abstract administrative act.Secondly,to strengthen the respect and proof of private benefits of payment,to take the public interest under the normative interpretation of payment law as the basis for the proof of private benefits of payment,to expand the range of normative interpretation,to strengthen the application of the guideline of normative purpose and the principle of proportionality and the principle of reliance protection,to expand the range of private benefits in the public interest under the normative interpretation and the possibility of its proof.Finally,we strengthen the correlation between legality review and substantive payment,allocate the burden of proof in litigation according to the substantive claims of both parties in the administrative payment legal relationship,and choose to apply the judgment of performance or payment according to the specific degree of payment rights and obligations,so as to strengthen the effectiveness of administrative payment review and promote the substantive resolution of payment disputes.