On The Application Of Administrative Practices In Judicial Decisions

Due to the limitations of statutory law,more and more scholars of administrative law have begun to pay attention to the unwritten law sources,among which administrative practice as a customary practice of administrative organs has been given particular attention.It is generally believed that the elements of administrative practice are "formed by the administrative subject in administrative activities","long-standing and repeatedly applied generally",and "a certain degree of legal certainty and recognition".For the two controversial elements of "confirmed by a valid court decision" and "not expressly provided for in statutory law",first,administrative practice does not need to be confirmed by a court decision,its credibility is sufficient to make a customary practice into administrative practice,and all administrative practices have to be confirmed by the court is unrealistic.Second,administrative practice does not need to be premised on the absence of express provisions in statutory law,and the court should mainly look at whether the administrative practice is consistent with the spirit of the relevant legislation,rather than rigidly looking at whether it is consistent with the specific provisions.Compared with other related concepts,administrative practice is both unique and related.Compared with civil practice,administrative practice is formed in administrative activities.Compared with statutory sources,administrative practice is not a normative document made by a competent authority.Compared with administrative professional judgment,administrative practice should be reviewed by the court before it can be applied.Besides,civil practice has the possibility of changing into administrative practice,and administrative practice includes the possibility of changing to statutory law.Administrative practice can be applied in judicial decisions mainly based on the theory of administrative self-restraint,the theory of protection of reliance interests,and the limitations of statutory law itself.After entering into the judicial procedure,the court should review the administrative practice,which in practice is to examine whether it is in line with administrative efficiency,contrary to public order and morality,and whether it is in line with the expected interests of the administrative counterpart,etc.These can be broadly divided into legality,reasonableness and purposefulness review.The application of administrative practices in judicial adjudication is manifested in the various ways of initiation,the use of it to determine the facts of the case,and the reason for judicial adjudication.Because administrative practices are not mentioned in Chinese legislation,there are still many problems in their application in China,which are mainly reflected in the basis of application of administrative practices,the review standard of application and the review rationale.In view of the various problems of administrative practices in judicial decisions,first of all,it is necessary to consolidate the basis of application of administrative practices in judicial decisions,which should establish the unwritten source status of administrative practices,clarify the rules of proof for reversing the burden of proof,and clarify the status of their effectiveness.Secondly,the review standard of administrative practice in judicial decision should be refined and divided into the review standard of its establishment and validity.Finally,strengthen the logic and comprehensiveness of the reasoning of the application of administrative practice.