A Study On The Defective Administrative Act

Administrative act theory is the basis for the entire theoretical system of the administrative law, and it has always been occupying an important position in the study of administrative law among various nations. Defective administrative act theory is an important part of the administrative act theory, existing in the Administrative Procedure Code in many countries and regions of civil law. Scholars carry out in-depth and detailed study on defective administrative act, and have achieved some accomplishment. In China, due to the late start of the research on administrative law, the theories about administrative act are not solid enough, and the researches involving of defective administrative acts are particularly rare. Those researches involving of defective administrative acts are relatively superficial analysis and discussion very often, with inadequate depth and breadth, which makes the delayed theories unable to adapt to the development of the practice. In recent years, as defects in administrative acts appear in administrative practice in large numbers, Chinese scholars on administrative law are paying more and more attention to the defective administrative acts, and the theoretical studies have also gradually started to the all-round development. This paper is aimed at enriching the administrative act theory, so that it can provide a better guide to the administrative proceedings practice, through the study of defective administrative acts, which can play its unique value and capabilities based on theories.This paper is divided into four chapters:Chapter I elaborates on the meaning and criterion of defective administrative acts. This chapter illustrates the connotation of defective administrative acts in those countries and regions where the theoretical study on defective administrative acts is relatively systematic and complete such as Germany, Japan and Taiwan region of China. Through a comprehensive comparison of different meanings of defective administrative acts at home and abroad, combined with the actual development of the administrative action theory in China, this paper determines the concept of defective administrative act in line with the actual situation of our country, which is the combination of illegal administrative acts (obvious, serious and general administrative violations) and improper administrative behaviors (minor administrative violations, and legal, defective or inadequate administrative behaviors). Defective administrative acts can be divided into invalid administrative acts, revocable administrative acts, and amendable administrative acts. This article does a further analysis on the criterion of defective administrative act based on its meaning, mainly from the subject matter causing defective administrative acts. This paper argues that five aspects should be considered: illegal composition of the executive branch, unlawful jurisdiction over administrative body, illegal manner of administrative behavior, unlawful procedures of administrative action, and illegal content elements of administrative acts. So the whole article carries out the discussion from these above five perspectives, listing different legal provisions at home and abroad, which makes it more specific in the meaning of defective administrative acts.Chapter II analyzes several different forms of the defective administrative acts. There is no clear definition of defective administrative act in China's current legal system and institutions, but according to the actual needs of administrative proceedings, from the effectiveness content of administrative acts, effect patterns and the extent of flaws, it can be divided into five types which are unfinished administrative act, and administrative act with written errors, improper administrative act, invalid administrative act, revocable administrative act. This paper carries out a detailed exposition on these five types of acts respectively, detailing defective administrative act through theoretical analysis combined with judicial practice, by listing different forms of each type of defect in administrative action.Chapter III carries out an in-depth investigation into the legal effects arising from defective administrative acts. Different from the legal force, legal effect refers to enactment, modification or elimination to rights and obligations by the administrative acts, or the rights and obligations which are enacted, modified and eliminated by the administrative acts, and it is one of constitutive requirements or conditions of an administrative act. To classify defective administrative acts from the perspective of legal effect is to specify and detail it from its rights and obligations, and they can be summarized into several different legal effects as the following: valid; groundless; void; invalid; revocable, modifying or identified illegal, in which each type of legal effect has a corresponding form in defective administrative acts. In administrative practice, the legal effect arising from defective administrative acts deserves enough concern, as it relates not only to the effectiveness of administrative acts, but also related to the realization of the purpose of administrative acts. Therefore, a detailed analysis of the legal effect of defective administrative acts adapts to the need of administrative litigation practice.Chapter IV discusses the curing issues of defects in administrative acts. Defective administrative acts will exist in the administrative practice for a long time, with a gradually increased trend in number on the current situation. The legitimate rights and interests of the executive relatives will lose their deserving effective protection if the unlimited changes of the defective administrative acts are allowed. Therefore, it is necessary to cure the defects. The cure of flaws refers that the defective acts will be treated as the original flawless behavior with their effectiveness maintained, having been substantially corrected in later circumstances. In connection with the different manifestations, the curing methods of defective administrative act can be summarized as follows: correction; modification; ratification; conversion. This article cites the relevant provisions in some countries and regions with more mature curing theory of defective administrative act, respectively concerning some specific requirements such as the cured body, the cured scope, and effectiveness. Although the requirements on cure system vary in nations, the goal is basically the same, which is to better achieve the effectiveness of administrative acts. Learning from the requirements of those nations and regions with perfect curing theories, combined with China's administrative law practice, we should select operable cure methods in concern with different forms of defects, in order to achieve the purpose of administrative acts. In the process of analysis and discussion, this paper also made a reasonable proposal to the construction of the defect curing system. In addition, the article has done a superficial analysis on the curing time, which focuses on the relevant provisions of the correction time. This paper also believes that a reasonable choice of curing time can eliminate defects as soon as possible in the administrative practice process, and protect the legitimate reliance interests.