Research On Legal Principle Of Administrative Law And Its Applications In Judicial Process

For all the time, our country neither acknowledge the unwritten law sources nor think the basic principle of the administrative law is the origin of the administrative law, thus the basic principle of the administrative law is not taken as the referee basis for the administrative cases. Actually it has been unable to meet the present need of judicial practice. If the basic principle of the administrative law is analyzed historically from the various aspects, such as from its essence, its status, its modus and its function, it can be discovered undoubtedly that the basic principle of the administrative law is not only an original member of the administrative law but also must be taken as the judicial referee basis. The basic principle of the administrative law, as a new and developing law, well makes up the imperfection of the administrative regulations. In applying the basic principle of the administrative law,"full use of the regulations"and"the sufficient proof"must be followed. When the regulations of the administrative law are imperfect, too general and vague, and the results of applying those regulations cause obvious unfairness and contradiction, the basic principle of the administrative law must be applied. There are four detailed applying procedures: first testifying the case of necessarily applying he basic principle of the administrative law; second the recognition of the principle; third the specialization of the principle; and the last, consideration of the legal effect of applying the principle. From the application of the basic principles of China's administrative status, the application of the basic principles of administrative law has achieved breakthroughs, but there are still inadequacies, and establish a mechanism to apply the basic principles of administrative law and the rules of procedure it is necessary.