On The Legal Effect Of Administrative Act With Flaw

In practice, due to the complexity of society, the complexity of the administrative relationship, such as non-standard administrative behavior abounds. In addition to the traditional administrative law and administrative improper outside, there is no third possibility? The answer is no, defective administrative ACTS is a third possibility. German defective administrative ACTS can be divided into incorrect legal consequences, not the purpose of administrative behavior, and the general illegal administrative behavior, and the more serious flaws and especially serious flaws defective administrative ACTS. Japan will improper illegal administrative act and administrative behavior, administrative act is defective. Our country academic circles also have no a unified standard. Germany, Japan, and China’s scholars now some of the views of all defects in one way or another. Defective administrative ACTS should belong to the illegal behavior of general, this kind of illegal behavior is mainly manifested in the program or formally flaws, the flaws are not necessarily invalid or revoked, for minor flaws can enable the behavior to take effect by means of remedy; For big obvious flaw, has damaged the interests of the administrative relative person, revoked or confirmed as invalid. Defective administrative ACTS belong to the minor offence, the main defects in form or secondary procedures, these flaws not substantial effect to the nature of the administrative behavior, so the defective administrative ACTS with the presumptive legality, so to ensure the stability of the legal relationship. Before the legislatures to make authoritative judgment, should be presumption of defective administrative act effectively. In view of the effectiveness of the administrative act has validity in both form and essence validity, the validity of the defective administrative ACTS can be divided into form validity and substantial effect. Form validity is a serious and obvious flaw will affect the administrative behavior, the other is the other defects will not affect the form of administrative behavior. Serious (or major) and apparent defects is invalid administrative act, administrative act later confirmed by the authoritative judgment can administrative act is invalid. For minor defective administrative ACTS, application system is the optimal choice. The effectiveness of the essence of the administrative act is in administrative action under the condition of the principle of law the essence of the legitimacy of law. Against the defective administrative ACTS the legal consequences of valid elements there are two kinds of performance:cancel the defective administrative ACTS or confirm the illegal administrative behavior. The essence of the other defective administrative ACTS effectiveness should be according to the different nature and degree of defect, to its amendments, alteration, correction of remedial measures. In the existing laws and regulations on the defective administrative ACTS are taking a more strict rules, as long as are defective administrative ACTS as a result, revoked or confirmed as invalid and shall not take up the relief way of surviving its effectiveness, particularly for violation of laws and regulations of the drawbacks of procedural matters, so there is a big disadvantages, should draw lessons from foreign good experience and practices, gradually consummates our country flaws in that the laws and regulations of administrative effectiveness. Such as Germany and Taiwan area of defective administrative act by corrected and transformation way, Japan adopt the method of healing and transformation. First of all, identified defects should be strictly abided by during the administrative effectiveness practical principle, legitimacy principle, proportion principle and safeguard judicial solution principle. In the review, prudent use undo, illegal use less, careful verification, in accordance with the principle of due process to review, for minor defects should be corrected, etc.