On Administrative Counterpart Of The Right Of Resistance

Administrative counterpart has an obligation to obey and match the administrative actions of administrators, which is the common condition of administrative courses. Private party's right to resistance of administrative action, which is vested in administrative counterpart, is aright to disobey invalid administrative action in administrative courses. As the practical target, invalid administrative action is the administrative action which has no results from the beginning because of huge and obvious illegal conditions. As an exception, administrative counterpart can defense the invalid administrative action and would enjoy the legal exemption from the responsibility resulted by impeding administration. It broke the inherent pattern of the rights and obligation between administrators and administrative counterpart, and is conducive to protect the legal rights of administrative counterpart. It can also restrain and supervise the practice of administrative power as well as compensate the disadvantages of traditional relieve measures. This thesis takes comparative, regulation and practical study methods, and it consists of five chapters:Chapter One the outline of administrative counterpart and its rights, it begins with the administrative counterpart, elaborates the concept and the development of the rights of administrative counterpart, which definitude the precondition of analyzing private party's right to resistance of administrative action.Chapter Two the outline of private party's right to resistance of administrative action, it introduces the developing route of the right to resistance, makes the developing headstream of private party's right to resistance of administrative action clear, and analyzes the concept and characteristics of private party's right to resistance of administrative action, which is a procedural, dynamic, individual and recovering right.Chapter Three the justness and rationality of private party's right to resistance of administrative action, it analyses the value foundation, the theory foundation and the reality foundation, in which elaborates limited de facto force theory and invalid administrative action theory. It demonstrates the justness and rationality of the existing of private party's right to resistance of administrative action, and posts the indispensability and essentiality of the exertion of private party's right to resistance of administrative action.Chapter Four the legislation construction and judicial practice of private party's right to resistance of administrative action, it introduces foreign legislation actuality of private party's right to resistance of administrative action, elaborates the legislation actuality of China and comments it, and then analyses the judicial practice of China, which establishes the basis of the following writing. Chapter Five the difficulty and achievement of private party's right to resistance of administrative action in China, it analyses the difficulty of private party's right to resistance of administrative action in China, which includes ambiguous concept of invalid administrative action, being hard to ascertain invalid administrative action, the lack of affirming invalid administrative lawsuit pattern, the burden of violating duty of administrative counterpart and the problems of administrator and administrative counterpart, etc.. Aiming at the obstacles above, this thesis provides measures of solving them in order to promote and ensure the realization of private party's right to resistance of administrative action.