A Study On The Defective Administrative Act

Blemish administrative behavior theory is the theory of administrative behavior is an important part of the continental law system in many countries and regions of the administrative procedure code, scholars of defects administrative act launched a deep and detailed study, and made some achievements. In China, administrative law research started late, administrative behavior theory is not solid, especially with blemish administrative behavior research is more rare, even if there is more involved, and to compare the superficial analysis and discusses the theory, the width and depth of the study is insufficient, especially the theory of hysteresis can’t adapt to the development of practice. To establish relevant system, in order to better guide the practice of administrative litigation, but also this paper writing purpose.This paper mainly discusses administrative defects related theory, content involves blemish administrative behavior of the connotation, the defects of the administrative act foreign research, construction blemish administrative act the idea of system in the third part of the content.The first chapter for defects of administrative behavior connotation. In this chapter in the first part, through the blemish administrative behavior concept definition and characteristics of the research, the author thinks that, blemish administrative behavior is refers to the existing small defects, but does not lead to ineffective and revoked by correcting, etc, to recover its legitimacy of illegal administrative act; In the second part and discusses the theoretical basis of flaw administrative act, this part of the administrative law from two basic theories, namely the presumptive legality theory and trust protection principle, discusses the system of administrative flaw existing theoretical basis. Based on the general theory of the presumptive legality, are not entitled to authorities according to law over its effectiveness to judge before, administrative defects shall have legal effect. According to trust protection principle, the administrative behavior is entitled to organs shall, in accordance with the identified as administrative flaw, the determination result does not affect the validity of the administrative behavior, which means the legal effect of administrative defects shall be maintained. The two principles constitute the system of administrative flaw existing theoretical basis, but also because of the presence of such a basis, we have to discuss the significance of defects administrative action.The second chapter for defects of administrative behavior research area. This paper illustrates the blemish administrative behavior theory research to carry out systematic and perfect Germany, Japan and Taiwan defects about the research status of administrative act. Through the comprehensive comparison of administrative law at home and abroad about the blemish administrative behavior research, we can see. Germany to blemish administrative act epitaxial definition is very broad, but Germany’s judicial system is very strict, and administrative legal system is also very perfect, so as to whether administrative remedy or judicial review of administrative behavior for the defects of the benign development provide the powerful guarantee; Japan’s system more agile, for defects classification of administrative behavior is more strict, the pursuit of the result also pay more attention to the actual effect, all of the administrative subject put forward higher request, the whole theory and institutional system is developing; Taiwan is the inheritance and development of the basic system of Germany and Japan, and through the strict legislation system make blemish administrative act processing work, but in a large number of practical administrative management usually appear in the process of various difficult blemish administrative action or the development of the system in the face of more new challenge for defects administrative behavior types of division, defect degree of definition, blemish administrative behavior consequences the means of processing are also a lot of controversy. In conclusion, we found that in the national public power generated after, administrative process leads to a large number of administrative behavior, in this heavy administrative management process, the problems of complexity is diverse, the administrative management is complicated, even if is administrative law research is developed countries, for the defects of administrative behavior both theory and practice aspects are also has many differences, the business giants. For our country is concerned, administrative law, administrative practice started late problems encountered in the many and complicated, and combining with China’s special situation, fully absorb other countries and regions, the rational part of the system to reach an agreement in theory and in practice, the draw all kinds of experience, so as to establish relevant system blackboard and preparation.The third chapter for the construction of blemish administrative act the idea of system. And related concept, the analysis theory basis and comprehensive investigation on other countries and regions on the research present situation, all this is the purpose of the construction of the system. Theory only into specific system are the value of its existence. This chapter from five aspects discusses blemish administrative action system of the specific construction, these five aspects respectively is:the first, constructing the defects of the system of administrative behavior principle. In constructing the system of any system, should first establish a basic position can’t shake the principle, so that all the other provisions of the system have according to the standard, executable. In general, this paper argues that blemish administrative action system should include the principle of legitimacy principle, conform to the principle of objective conditions, the largest kind principle and judicial final solution principle. Second, the defects of administrative behavior determination standards. Defects that administrative behavior is the foundation of the system of, only that the behavior, can have the next necessary to solve the problem. Simply put, defects of administrative behavior determination standards in essence is how to distinguish the blemish administrative behavior and other illegal administrative behavior problems. Through the discussion, the author thinks that,\" small and the administrative behavior without substantial effect\" of the standard form and essence from two aspects of the difference between defects administrative behavior and other illegal administrative act, this standard will form and essence two aspects of organic combination, complement each other. And in this part puts forward legislative Suggestions. Third, the classification of defects administrative action. For a wide variety of defects administrative behavior reasonable classification, it is effective to prevent defects administrative behavior generation, and once found defects administrative act an important prerequisite to the scientific disposition. This paper tend to cause according to administrative behavior produce defects reasons for classification:1, with physical defects of the administrative behavior,2, has the program blemish administrative behavior,3, has the form blemish administrative behavior. Fourth, the defects of administrative behavior correcting. This paper holds that, the establishment of blemish administrative act compensating system is very necessary, because blemish administrative act as supplement to eliminate the administrative behavior of the defects, and maintain the effectiveness of the administrative behavior, to protect the lawful rights and interests of the administrative relative person also maximum maintain the stability of the administrative order. But China’s current legislation of administrative behavior is without blemish supplement the relevant provisions of the system, the author suggest the future formulate a unified administrative procedural law or modify the administrative procedural law and related laws increase the relevant provision, and puts forward some Suggestions. Fifth, blemish administrative behavior of the legal responsibility. Administrative defects as a kind of illegal administrative act once established, will lead to a certain legal responsibility. This paper believes that the defects can lead to civil servants administrative responsibility, but will not inevitably lead to the occurrence of administrative compensation liability, in which should pay special attention to.