| Administrative act has long been regarded as the "Archimedean fulcrum" in administrative law.In the administrative intervention formed under the background of a country ruled by law,the work around the formalization of various administrative acts has become a research hotspot.Accordingly,the theory of the form of administrative act has gradually formed.In this set of institutional devices,the formalized administrative act is the focus of theoretical attention,that is,it depends on the guiding ideology of abstraction and effect centralization and the application of logical methods such as induction and deduction.Through the classification and integration of administrative activities of different natures,the constituent elements of its continuity and its corresponding legal effect are summarized,The behavior of administrative organs can rise from the factual level to the legal level.Because of this,a precise,efficient and self consistent system has always been the pursuit goal of the form theory of administrative behavior.However,with the change of administrative tasks,the application of administrative acts by administrative organs shows more and more needs of flexibility and flexibility,purpose orientation,effectiveness and negotiation.In practice,the use of administrative acts by administrative organs no longer adheres to a single camp of formal administrative acts,but under the guidance of the legitimacy of the purpose of administrative tasks,when certain conditions are met,they make selective discretion on what kind of administrative acts to exercise,such as the form of private law or public law contract,the use of untypical administrative acts,etc.In this context,how to respond to this change in theory has become an urgent problem to be solved.By referring to the relevant academic views of Germany and Chinese Taiwan region,this paper attempts to introduce the theory of freedom of choice of administrative act form to answer the above questions.In the first chapter,the article briefly reviews the formation process of the theory of administrative act form and the remarkable characteristics of the theory.The writing purpose of this part is to lead to the topic of the form theory of administrative act.In the second chapter,the article analyzes the changes of the form of administrative act in the current administration from the practical and theoretical levels.At the practical level,by enumerating and analyzing practical cases,this paper demonstrates the choice and types of act forms of administrative organs,and then demonstrates in detail the requirements for the form of administrative act under the superposition of multiple administration from the theoretical level.On this basis,it completes the review of the traditional theory of administrative behavior form.The purpose of this part is to lay the foundation for the ideas advocated in the following paper.In the third chapter,the concept and connotation of the theory of freedom of choice of administrative act form are introduced and introduced in detail.Firstly,this paper introduces the concept of this theory in different periods in extraterritorial areas,refutes the doubts of some scholars,and then discusses in detail the connotation of the theory of freedom of choice of administrative act form from three dimensions: the choice between public law behavior form,the choice between formal administrative behavior and non formal administrative behavior,and the choice between public law behavior and private law behavior.The fourth chapter mainly discusses the regulation of the theory of freedom of choice of administrative act form.Firstly,the article identifies the essence of this freedom of choice,that is,the discretion of administrative procedure,and then makes a comparative selection from the discretion under the normative model and the functionalist model,and based on the latter,from the permissibility of the discretion of form selection,the formulation of the benchmark of form selection discretion The substantial rationality of form choice discretion and the administrative responsibility under the attribute of basic rights construct the corresponding regulatory boundaries;In addition,the article takes the "no punishment for first violation" stipulated in Article 33 of the new "administrative punishment law" as an example to demonstrate the relevant theoretical contents described above.The conclusion of the article holds that there should be a dual approach to the study of the form theory of administrative act in China.On the one hand,under the circumstances of abnormal power thought and heavy task of building a government under the rule of law,it is necessary to still regard the form theory of administrative act as criterion,but on the other hand,due to the rapid development of administrative activities,we should pay attention to the theory of freedom of choice of the form of administrative act,So as to provide sufficient theoretical support for the activities of administrative organs. |
