A Study On Act Of The State In Administrative Law

The theory of act of the state is a rather important part in modern practi ces of administrative litigation.If we only focus our observation angle t in view of the practice of Chinese administrative law, we will find the concept of act o f the state is only found in the theoretical framework constructed by administrat ive procedure law and relevant laws.In this sense,the act of the state is closely connected together with The scope of the litigation in the initial appearance, it exists as a kind of national judicial review activities exclude items.As the concept of national behavior demonstration object first refers to the a dministrative (litigation) act of the state law, But in some of the basic theory of t he chapter also relates to meso significance and general meanings of "act of the s tate" concept.Although the concept of national behavior is emerging from the syst em in administrative law, But only in the perspective of administrative law to ob serve this concept is absolutely not enough.This is one of the reasons why the c oncept has not get enough attention in the theory of administrative law, becaus e just theory research can not explain the theory of administrative law, Only in t he concept in public law category, the concept of deconstruction and construction can be explained more convincing.For the term of act of the state can be interpreted from the two senses:As a concept of international law, it is used to handle with relations between coun tries, In this sense, the State Department of international law on the meaning o f the sovereign state, is a legal entity, its national behavior is a special state o rgans state-owned right in international affairs, international law on behalf of the state to exercise rights and perform the obligations of the international law.The s econd one is part of the administrative law concept, refers to the behavior of th e country.At the same time, national recognition behavior is this view comes fro m the national personality of fiction is the practical significance, And, the acts of state is consonant with the national task, the acts of state is a kind of syste m in order to complete the task and be constructed out of state.Analysis on the a cts of state cannot be reached from the analysis process of administrative task s, there is a close link between the two things.Between the specific administrat ive tasks exist as act of the state and specific pure task execution, the relation ship is not only a kind of "causal relationship", but in the form of the interact ion comes from the constitutional goal.Acts of the state items excluded from litigation is a common phenomenon, i f we check the the foreign legislation, will find that when different countries i n the provisions of the relevant matters, not only embodies the commonness in t he induction on matters also reflects the regime caused by factors such as personal ity and history. The so-called acts of state is different from other general adminis trative act, because it has great guiding effect on the destiny of the whole develop ment of the country, it not only is a kind of law enforcement behaviors. So t he national behavior characteristics, in addition to a major "political", but also h as "Tinality", when we tried to construct the concept of state acts comes from th e law, a thing that must be done is to sort out the relationship between acts o f state and relevant concepts one must do is around the concept of the concept a nd the week, The purpose of this review is to put the concept into a systematic p erspective, the major way is to regular the form of an concept and connotatio n of the conceptActs of the state in fact largely is the national autonomy experience, in fac t, the country is of course independent, this point seems to be self-evident, i n fact, this impression comes from the result of the operation of the country, a nd not from the study of national architecture and the personality orientation, o nly to set the value orientation of national autonomy, and follow this value orie ntation to construct relevant system of the state, then the subsequent behavior s ystem can reflect the objective orientation of the whole country, and the syste m behavior in the field of administrative procedure law is the act of the state.If you want to further illustrate the theoretical orientation of acts of state, y ou have to show the relationship between acts of state and other related conce pts like "rule behavior", and make "standard" of acts of state clearly is a ver y complicated problem, it requires considerable uncertainty for the theoretical di scussion and practical operation, and it also need open the appropriate in order to accommodate future development. Almost every criteria is prescribed by la w or its theoretical explanation on all possible controversy. Acts of state are re lated to the national rule of high political behavior, even involving the private s pecific rights and obligations and matters can be solved by law, also will be excluded in the judicial review. Because in accordance with the democratic pr inciple, the highly political issue should be judged by the national authoritie s with political responsibility, and ultimately by the sovereign national judge, if the court judge is in highly political behavior, it will make the court inv olved in political disputes, endanger the political neutrality of the court and j udicial independence right.For the path of national legalization level, in addition to expanding the sco pe of the administrative litigation, supervision of the people’s Congress and the procuratorial supervision function is should be pay attention to, because this is not just the two is the current constitutional system, in addition to special judicia 1 proceedings, these two channels are the most closely ones, But for acts of s tate such object with so much political means, the regulation must has a consi derable level and can provide considerable efforts, this is the basic conditions, s o it can be used as alternative means.but the two system context is not the sa me, for the people’s Congress Supervision, already deposit of relatively mature t heory and practice, but for the procuratorial proposals, the existing procuratorial proposals content does not involve national behavior matters mentioned here is the procuratorial proposals for the system extension and connotation have further expa nded space.