On Judicial Relief Of The Administrative Instructing Behavior

Abstract:Along with the accelerated process of the rule of law in China and the development of service-oriented government construction and system of administrative instructing has been developing fast and perfectly, administrative subject and administrative counterpart can be better to interact and protect their legitimate rights and interests. However, with the rapid development of administrative instructing system, the phenomenon of illegal is endless, but relief system, especially the judicial relief does not get the attention what it deserves, it is failure to effectively protect the administrative counterpart ’s legitimate rights and interests.Traditional administrative theory considers that the administrative instructing behavior is affiliated with substantive administrative behavior, and it does not have a real effect on private interests, so it is not actionable. On the trial, if the Court considers that the program of carrying out administrative act is illegal, he should make a adjudicate to cancel the specific administrative acts, judgments form is single. Along with the thorough research on procedural administrative acts, administrative instructing behavior will partly be tortious and independent, whether it is actionable or not, it is defies generalization. Being tortious and independent, illegal administrative instructing behavior should be included in scope of accepting cases in administrative procedure, and the judgments form for illegal administrative instructing behavior should diversify. The administrative instructing behavior which violates administrative counterpart’s lawful rights and interests can be used to revoked judgment, but for the administrative instructing behavior which doesn’t violate administrative counterpart’s lawful rights and interests, it should not be revoked, we can use the way of confirming it is illegal or other better judgment forms.