The Study Of Preventive Administrative Proceeding

As known to all, jurisdiction is the last way to guard social justice. But administrativeproceedings can only be filed after suffering damages under traditional administrative litigation.However, this afterward judicial relief is weak when irreparable infringement would occur once someadministrative acts or administrative factual acts are implemented. Based on “effective, withoutloopholes" right protection philosophy, the paper proposes to learn experience from legally developedcountries, and to build preventive administrative proceeding, allowing administration counterpart tofile suit when one administrative act is made but not implemented yet. This would prevent fromirreparable damages and fill up the blank of preventive administrative proceeding in current China.The paper firstly defines the concept of preventive administrative proceeding, and indicates itscharacters of preventability, no exhaustion of administrative remedies, suspending enforcement ofadministrative acts, limitation of administrative acts and complementariness. Then it proves theconstruction basis, focusing on fundamental rights of citizens, especially litigation rights inConstitution and theoretical source of invalid administrative acts. It also elaborates its values inproviding judicial relief of effectiveness and without loopholes, and integrating administrativelitigation with international practice. After clarifying basic theories, it interprets anti-disclosure ofinformation in Government Information Publicity Regulation, preventive administrative relief inAdministrative Enforcement Act and other regulations, to reveal the emergence of preventive rightsprotection in China. Moreover, the paper thoroughly analyzes obstacles, respectively from the viewsof presumptive legality theory of administrative acts and principle of not suspending enforcement ofspecific administrative acts. Eventually, from the perspective of comparative study, it roughs out someideas for preventive administrative proceeding in China: tthe proceeding belongs to types of paylitigation, the litigation targets are irreparable concrete administrative acts and administrative factualacts, the scope of litigation are within administrative attachment, education through labor,administrative enforcement, and administrative acts may result in accomplished facts andadministrative factual acts, and finally it gives opinions on specific procedure designs, includingburdens of proof, grade jurisdiction, compositions of judges, trial procedures and judgment patterns.