Chief Relative Resistance To The Analysis Of Rights

The value of the administrative law is to control executive power and maintain the civil right.But in our real life,due to various factors,the value of administrative law should not be effectively embodied.First of all,from the reality of our situation,in terms of human,material and financial resources as well as the main powers are far greater than the relative.In the course of implementing the act,the main administrative organ always occupies the leading position,and the corresponding side always in a passive position,not really involved in the conduct of activities in the past,and even the basic knowing-right can not be guaranteed.Secondly,from our country's security and relief system,the existed system of relief including the administrative review,administrative litigation or administrative compensation,or all of the relief is an afterthought.It often causes irreparable losses for the relative,even though the one got compensation which is useless:Such kind of relief mechanism can not be effectively pursued by the administrative law reflecting the value of ideas - safeguarding civil rights.As the relative,in the face of their legitimate rights and interests against the unlawful administrative acts,in their own way,he could boycott or disobey? I believe that we can.Civil right is in the first place,while the state power is in the second place.State authority from the civil rights,it should guarantee the achievement of the civil right. The executive power and relative to the rights is the extension of state power and civil rights,and the executive power should serve the right of the relative. Therefore,I believe that the relative should be given the right to resistance, when their legitimate rights and interests face the danger of be destroyed or being destroyed.On the one hand,it can balance the rights and obligations between the relative and the main administrative organ,which truly reflect the relative as the main legal relationship status.On the other hand,it can protect the legitimate rights and interests of the relative,and regulate the main act. Theoretically speaking,according to the theory of De Facto Force,an administrative act by a public which is the establishment of De Facto Force, that is the subject of administrative actions,whether legal or illegal,should be presumed to be valid and relevant parties should comply with them,which are often to be the protection of the unlawful administrative acts.Although China's current law does not officially deny the theory of De Facto Force.The theory of "absolute De Facto Force" which is contrary to the substance of the law legitimacy,has been questioned by more and more scholars,however,the theory of "limited De Facto Force" is gradually accepted by the majority of scholars.With the introduction of the theory of "void administrative behavior theory",it has provided a theoretical support for the right of the relative resistance.In 1996,"Law of the People's Republic of China on Administrative Penalty" has been put forward for the first time the relative to the acts may be invalid rational exercise of the fight to resistance."Law of the People's Republic of China on Administrative Penalty" Article 49 "Where fines are collected on the spot by an administrative organ or its law-enforcing officers, the parties shall be given receipts for the fines as are uniformly made and issued by finance departments of provinces,autonomous regions or municipalities directly under the Central Government;if such receipts are not given,the parties shall have the right to refuse to pay the fines." In a country with a tradition of authoritarian political culture and abidance of the state, where such vaguely recognized,it is commendable,but it also makes titration support academic discussions on the right of the resistance even more vehement.The author have concerned and studied the issues mentioned above, and formed this essay.This paper is divided into six parts.Partâ… is the introduction,which find out the source of that power by analyzing the civil rights and the relationship between the beginning of the state power.And to explain the reason why the author has pay special attention to the relative resistance of concern right,the status quo of Chinese and foreign research in related fields,as well as to study the system of theoretical significance,practical value.Partâ…¡is to describe the significance meaning of the resistance on the right for the relative.Given the relative resistance of the people recognized the values of the principal ot,the public interests respect the interests of the individual.Existing powers to compensate for the lack of restraining power, the right restrains the power,but also balance the main relationship between rights and obligations.Partâ…¢is to outline the right of resistance,from the origin,the spreading and the development of the resistant right,formed a political sense,to the constitutional sense,and at last to extend to the Administrative Law sense of the right of resistance.Resistant right should be use reasonably,which means it could not be used freely or unlimitedly.This part is to regulate the right of resistance from subjective,objective,procedures and other aspects.Partâ…£focuses on the theoretical foundation on the resistant right, through the introduction of the "limited De Facto Force theory" of the administrative acts of resistant De Facto Force with the conflict between the rights and reconcile.On this point,"invalid administrative act" theory is the theoretical basis for the right of resistance.And the analysis of its administrative act and its similar invalid acts are the base of further explanation proved the "invalid administrative act" is reasonable.Partâ…¤introduces the present development of the relative's resistant right in our country.On the one hand,legal documents and judicial precedents admit the invalid administrative act and the resistant right.On the other hand, to perform the resistant right may face some difficulties because it is not standardized and the law is not complete.Partâ…¥is to conceive the relative resistant right with the measures to complete the theory of invalid administrative act,to set out theâ…¤.declared invalid,to strengthen the awareness of law and moral quality.