On the case of exclusions under the Administrative Procedure Law Thoughts

Abstracts of the Administrative Procedure scope of accepting cases there are many flaws and shortcomings, this article from the Administrative Procedure Law negation scope of accepting cases that, through the abstract administrative act, the internal administrative acts, administrative guidance which is subject to the Administrative Procedure Law Case excluded from the scope of the behavior of rethinking explanation be included in the scope of accepting cases Administrative Procedure feasibility and necessity, in order to constantly improve the scope of the case the Administrative Procedure Law.

Paper Keywords Administrative Procedure expanded scope of the case

I. Overview

Scope of Accepting Cases of Administrative Procedure Law refers to people's Court accepted the scope of administrative litigation cases. China's 'Administrative Procedure Law,' the second chapter and the Supreme People's Court 'on the implementation of <PRC Administrative Litigation Law> Interpretation of Several Issues' on page 1-5 provides a range of administrative litigation. In addition to the overall scope of the case designate, also cited by the Administrative Procedure Law Cases Limits scope of the case are not. Description Administrative Procedure limit the scope of the case will be subject to a more limited range, which is the country in the nineties judicial administrative litigation practice and theoretical research is relatively weak, judges are not high quality legal status relative to adapt. As Professor Wang Mingyang said: 'The scope of the initial stages of the proceedings should not be too wide, citizens can not for any illegal administrative acts are against the interests of administrative proceedings, administrative proceedings to protect the interests of the law and regulations there are provisions is limited. '
Today, from the promulgation of the Administrative Procedure Law has been more than two decades, in order to meet the requirements of socialist democracy and legal system, while expanding efforts to protect the rights of citizens and scope of the work to promote the legalization of administration should be appropriate to expand the Administrative Procedure Law scope of the case. The continuous improvement of the quality of the judiciary, citizens' sense of power and self-awareness to flourish, forcing the Administrative Procedure Law should reconsider its determination of the scope of accepting cases.

From a practical point of view, in 1999 the conclusion of administrative cases 98,759, with a total of 5.698 million concluded cases, administrative cases accounted for only 1.7%. 2010 new collection of national criminal courts, civil, commercial and administrative cases of first instance 6999350, administrative enrolled 129,133, accounting for only 1.8% of the country. This state is not maintained can be optimistic that the government consistently good behavior caused, especially in government involvement in the wide range of economic life, the extent of deep today. We dare not jump to conclusions, the difficulties of the people suing government officials is an indisputable fact, and with the administrative activities deepens people's lives, people's sense of power is getting stronger, frequent disputes and difficulties in forming people suing government officials sharp opposition, so people calling for a more effective remedy, which is bound to broaden the scope of administrative litigation responding.

Second, from the point of view of judicial review of exclusion

According to the provisions of the Administrative Procedure Law, abstract administrative acts, internal administrative acts, administrative guidance and the State Administrative Procedure behavior is not part of the scope of the case. But contrast the United States, Britain, France, Japan, Germany, the Administrative Procedure Law can be seen by the scope of the case, the abstract administrative acts, administrative guidance may appeal, abstract administrative act essentially actionable, act of state depends only on the non-actionable. In contrast, the scope of the exclusion of the Administrative Procedure Law of the five countries over much broader appeal.

(A) exclude the abstract administrative act on Administrative Procedure fifth expedition stipulates, 'The People's Court administrative cases, the specific administrative act shall examine the legality.' Description of the object of judicial review specific administrative act, for the abstract review of administrative acts, excluded from judicial review beyond. Because different constitutional system, our practice in most Western countries are different, the Western countries to implement the separation of powers, judicial power and the executive power, legislative checks and balances, foreign judicial review even unconstitutional law can be reviewed for the next bit, not to mention issued by the executive legal normative documents. However, in our country, the judiciary is under the leadership of authority, people's courts and the executive authority elected by the same level, and report to work, subject to its supervision. The judiciary and the executive are mutually parallel relationship unlike foreign mutual separation of powers, checks and balances system. Based on this country by the Constitution and the law, our review of the abstract administrative acts in the hands of the authorities and the higher administrative organs, such as our 'Constitution' Article 67 of the National People's Congress Standing Committee may revoke the State Council that contravene the Constitution , contrary to law or administrative regulations, decisions and orders; Article 89 The State Council to alter or annul the ministries or commissions issued inappropriate orders, directives and regulations, and to alter or revoke the local organs of state administration at all levels of inappropriate decisions and commands. And in practice, the judiciary although produced by the same level People's Congress, but its human relations and fiscal relationship is not completely out of the executive authorities, and even subject to local governments, people's courts exercise judicial power independently yet. Therefore, in theory and practice were excluded from the People's Court on the abstract possibility of review of administrative acts.

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but abstract administrative behavior is not specific for the majority of people making repeated applicable rules, once the abstract behavior ill conceived, and even the case of conflict with higher law, then the adverse affect not only involves a wide and long duration, in the next administration can not be avoided by anyone. The same time as the executive administrative subordination between the constraints by the executive authorities pay more attention to the decision issued by higher authorities, command execution. Higher authorities on the laws and regulations the explanation more concrete details are often more likely to be lower administrative organ, the administrative organ for the implementation of the law often means higher administrative authorities abstract administrative acts. Once the higher administrative authorities abstract administrative behavior is inappropriate, then the lower layers of the executive authorities will follow suit, calling the shots, until the lowest level of administrative organization. Sun Zhigang case in 2003, the Sun Zhigang was the staff at the shelter beaten to death, but the reason, in 1982 the State Council promulgated the 'urban vagrants and beggars deportation approach' (defunct) blame their deportation, Even if the asylum officer with the relevant provisions of the Constitution and other regulations to protect citizens' personal freedom in conflict, but still became the administrative organs at all levels to treat the 'three no' staff direct legal basis. In the promulgation of 20 years, the number of citizens' legitimate rights and interests have been infringed can imagine. So many scholars have called the Abstract Administrative Action into scope of the case.

However, all of Abstract Administrative Action into the scope of the case is not realistic. On the one hand, the right to appeal security and administrative efficiency will cause a conflict, any normative documents are impossible to meet the interests of each individual in society, she is for the community and the legitimate interests of the majority of people make. If anyone can be the way to court to resolve the legality of abstract behavior, then the administrative relative person might abuse the right to appeal, at the expense of the public interest, and ultimately harm the society as a whole. On the other hand, administrative regulations, rules and other high-order bit of the abstract administrative behavior often reflects the release of major policies in some countries, with high technical and overall, the judiciary should not be his 'gossip', otherwise influenced national policy the implementation.

This comparison is based on a representative view of the following administrative regulations tend to normative documents included in the scope of judicial review, because the development of these legislative normative documents personnel quality is not high, it is easy being affected by certain interest groups driven. And these normative documents in-depth local, with a strong localism or sectionalism color, ignoring the local and higher levels, partly with the global relationship, it is prone to violation of higher law, and even conflict with the Constitution of the phenomenon. These abstract administrative acts into the scope of judicial review, in order to maximize the protection of the legitimate interests of administrative counterparts. On the other hand, the following normative regulations more in the local implementation of administrative documents, although the audience and less regulation than legal documents reach wide, but its face because of its grassroots, direct impact on the administrative relative person's life, work, study states and quality. Outbreak of mass incidents in recent years mostly due to the introduction of certain government departments management approach bewitched by certain interest groups, completely ignoring local conditions, and abandoned the scientific development concept, has seriously changed the administrative relative person living conditions , making it difficult livelihood. Therefore, the following rules will be included in the Administrative Procedure Law normative documents scope of accepting cases also consistent with the maintenance of stability in the meaning.

(Two) examination of administrative guidance on exclusion refers to the executive administrative guidance for the realization of certain administrative purposes, during the management process adopted through demonstration, provide advice, recommendations, discipline, etc. and the implementation of a no binding force The administrative guidance. 'Supreme People's Court on the implementation of <PRC Administrative Litigation Law> certain stylistic interpretation of' first article no binding force of administrative guidance does not belong to the scope of the case by the Administrative Procedure Law.

Administrative guidance is generally believed that the administrative powers and duties relative no practical effect, it is implemented on a voluntary basis and are therefore excluded from the Administrative Procedure outside the scope of the case. With the development of society, especially the service of the Government's proposed mandatory administrative powers but also by changes to the service, so a lot of administrative guidance such 'non-mandatory administrative action' is also popular, and even government activities accounted for 80% .

Administrative guidance is essentially the executive to the existing allocation of resources to be a reasonable guide the intention of this command the flow of resources will inevitably have an impact on the vested interests of the parties, it reflects the government's policy intentions can be a period of time peeking out from the government's administrative ideas to society has an important role in guiding. Related to individuals, organizations, lower administrative organs will based on rational analysis, according to administrative guidance to guide their behavior accordingly. Although not directly alter the relative rights and obligations, but get little rights and obligations resulting subtle influence. Some interest groups influence administrative guidance is the value of this potential value of the relevant administrative authorities will be tempted to make administrative guidance in its favor, this rent-seeking behavior has become a hotbed of corruption, AIDS itself.

Meanwhile, as China's national conditions particularity, administrative guidance itself is not legally binding, but the executive authorities to achieve its goal of guidance, not completely laissez-faire citizen voluntary compliance arbitrary. In some places, such as government-led demolition process, although expressed by the citizens voluntarily, but for uncooperative citizens to take water and electricity, have been treated unfairly refused to aid citizens, forcing them to take seriously the government's guidance documents. On the other hand, the executive subordination relations, lower administrative organ, as the higher administrative authorities administrative guidance for the golden rule, and guide the content of the mandatory use of administrative powers to implement, a serious violation of the voluntary nature of administrative guidance. Closed due to administrative and guide the development of non-transparency, some administrative guidance is entirely certain of the Chief Executive for his achievements and to develop and vigorously, in total disregard of local realities. In this case, the power of the administrative relative person causing actual damage, also because of administrative guidance is excluded from the scope of the case by the Administrative Procedure Law and the lack of judicial remedies.

Administrative guidance remedy this defect, poor, and based on the reality of China's administrative guidance analysis, at least not directly excluded from the scope of the case the Administrative Procedure outside. As for determining what kind of censorship administrative guidance, you can learn from the Japanese practice of administrative law, focusing on the process of administrative guidance to ensure the legitimacy of administrative guidance to ensure as much as possible in a relatively transparent and democratic system, prevent driven by interests The black-box operation.

(Three) exclude internal administrative act for investigation under Article XII of the Administrative Procedure Law, the executive staff of the executive rewards and punishments, appointment and dismissal of such decisions are not subject to the Administrative Procedure Law within the scope of the case, although not explicitly within our the boundaries of administrative acts, but the 'Administrative Procedure Law' provides internal administrative acts actually refers to the executive personnel management behavior, referring to executive staff subject to disciplinary action and termination of appointment and removal of such examination or decision. Law based on respect for the executive administrative staff appointment and removal of internal autonomy, provides that the court should not be building on the organization of the executive to intervene through judicial proceedings.

But any one executive staff has a dual identity. First, he is a citizen of the PRC, and secondly, he is the executive staff. Its executive appointments and dismissals and disciplinary status will not only affect their work will affect its rights and obligations as citizens. For example, under the 'Supervision Law' 20 (3) provides that the supervisory authority has the right to order the persons suspected of violation of administrative discipline in the formulation of the time, place, the question matters under investigation to make explanations. This primarily applies to state workers detained for interrogation personnel matters coercive measures is compulsory administrative measures taken, but it involves not only the duties of staff rights and obligations, but also involves staff rights and obligations of citizens, namely freedom Right.

However, provisions of the Administrative Procedure Law, as long as the work of state organs involved in the personnel handling behavior, are excluded from the scope of accepting cases, even the administrative staff personnel by civil rights and obligations when dealing will not be incorporated into the case by range. But when the chief executive of civil rights and obligations by the personnel dealing when it is no longer a purely internal administrative behavior, and should belong to the external administrative act, should be subject to the adjustment of the Administrative Procedure Law.

Therefore, whether the Administrative Procedure Law should not be subject to administrative personnel management as to whether the scope of the case in accordance with, and shall conduct personnel management executive staff involved in the rights and obligations of the categories as if by case basis. All related to executive staff conduct civil rights and obligations, shall be included. Particularly in relation to staff dismissal, dismissal and other issues involving labor rights, the rights to subsistence and other important decisions, should be for the relevant parties to provide administrative proceedings relief channels.

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