A Research On The System Of Administrative Prescription

On the points of controlling the administrative right, asserting the legal rights of administrative relevant persons, the author applies the methods of historical analysis, comparative research, standard analysis and positive analysis and so on to systematically discuss the history of development for the system of administrative prescription, the concept, elements and value of administrative prescription, and raises the personal suggestions on the contracture of the domestic system of administrative prescription.The thesis is divided into three parts. In the first part, it is given a conceptual analysis to administrative prescription. The first question is simply introduced the historical development of the system of actual effect. It early emerged in the Civil Law and the system of actual effect originated from the ancient Roman Law, until the Theodosius II brought the concept of elimination for actual effect. In the 19th century, German famous legist Winscheid created the concept of Anspruch, the German Civil Law was based on it, which formed the elimination for actual effect in the substantialistic law. The prescription should be a fact state and the legal facts that bring some legal effects. With the development of time, the criminal law, international law, labor law and other department laws also appear the regulations of actual effect. The author traces to the sources and expounds the emergence, development, and evolution of the system of actual effect itself, thereby brings out the problems of administrative prescription that needed study. The second question is all-sided analyzed the concept and elements of administrative prescription. The author deemed that administrative prescription refers to the legal system that certain legal fact through legal time limit brings some administrative legal effects. From the perspective of legal standards, administrative prescription can be divided into legal facts, time limit and legal consequences these three basic elements. The first basic element is legal fact, which is the premiss for the happen of administrative prescription; the second basic element is time limit, which is the time limit regulated by administrative prescription; the third basic element is legal consequences, it is the central problem of administrative prescription—the right and liability state which limited by prescription. The third question is the categories to administrative prescription from different perspectives of view.In the second part, it is given a value analysis to administrative prescription. The first question is summarized the values of administrative prescription abroad and home. Concerned the basic value orientation of administrative prescription, in the domestic administrative law field is the generally mentioned to realize the administrative efficiency. This kind of view of administrative efficiency only protects the state and public interests but neglects the interests of administrative relative persons. This kind of lopsided view of administrative efficiency should be criticized manifestly. With the changes of state functions, the rise of the welfare state, the development of the democratization, opening and servicing of administration and the control to the high bulgy umpiring right of administration free and etc. factors, the fundamental concept that foreign values of administrative prescription penetrated is to ensure the fairness. The fundamental aim of the administrative law is to realize the social fairness through the control to rights, then to pursue efficiency basing on the fairness. In the second question, the author has analyzed on the value of administrative prescription from the point of jurisprudence. The author considers that, the administrative prescription as one the composition of the laws, it should fulfill the basic value of the laws: namely order, justice, fair, freedom and efficiency. While the regulations of the administrative law should embody the legal order in a certain period, and this means it needs to establish a prescription system. The laws always server for a certain order, and the severing type is determined by the selection of lawmaker. For instance, the civil gains the systems of prescription, when social consciousness takes granted that things should be full-used; the law will no longer protect the rights of the actual ownership holders but affirm the rights of occupiers. This kind of dynamic conversion from protecting the old order to the new order reflects the affirmation and certification that law gives to the present facts and state, thereby to impetrate a stable order. Essentially, the system of administrative prescription is the negation or protection to some administrative orders; therefore, if this kind of order represents people's needs of justice, then it will be helpful for the realization of justice. In the reflection of the administrative law, a sound system of administrative prescription contributes to realize people's dream of pursuing the administrative justice. However, the social order is always under the state of constant kinematic changes, to meet the demands of a stable social order, the law must consider the changes. If the law has given the litigants enough chances for considering and choosing, in time, the litigants do not exercise the rights and interests in the specific period of time that given by law, their ever-owned legal rights and the legal justice that represented by this kind of rights will no longer exist. The law will no longer protect this kind of rights because justice is beyond the time limit and its characters are inevitably changed. The system of administrative prescription will give a specific space to the rights of umpire for administrative freedom in time, which makes the administrative rights serve the human society better; it is one of the aims for freedom. The system of administrative prescription is the coordination and dispensation of administrative freedom and human freedom of rights control in the interests of time, scientific system administrative prescription contributes to people's gain of more sufficient freedom and realization to the pursue for order, justice, and freedom. The ultimate value orientation of administrative prescription is to realize the administrative justice and administrative freedom.In the third part, it is on the construction to the domestic system of administrative prescription. The first question is summarized the existent problems in the domestic system of administrative prescription. Lake of the prescription system which constrains the abstractive administrative actions;Many administrative legal norms only regulate the time limit of administrative relative person obeys the administrative order management, but have not regulated the needed time limit to the administrative actions of administrative subjects, which cause administrative subjects can arbitrarily delay time in the process of administrative activities. It leads to the concerned administrative relative person's endless wasting in manpower, material resources, time, energy; though many administrative legislations do not make sure the legal consequences when administrative subjects infringed the prescription term, which cause the system of administrative prescription exists in name only because the lacks of this core element; though many administrative legislations have regulated the administrative prescription of administrative subjects and administrative relative person, this kind of regulation and its appliance is very unequal to administrative organs and administrative relative person. The second question raises that reestablish the values of the domestic system of administrative prescription and sets forth seven aspects of specific suggestions to the construction of the system of administrative prescription. Include the principle of insisting the necessity; the administrative prescription that involves the important problems must be established by the domestic legislature;the establishment to the time limit on the system of administrative prescription should conform to objective law and have the rationalities; ensure the integrity of the laws and regulations elements of administrative prescription, especially the elements of legal consequences, otherwise, administrative prescription will exist in name only, etc. these above seven aspects.