Study Of The Judgment Of Administrative Act Not Quoting Terms

A complete administrative decision often includes two aspects for the evaluation of facts and law application. And in respect of law application, according to the requirements of the principle of law based administration, when making the administrative acts, administrative organs must have relevant legal basis and show the legal basis for administrative counterpart in order to protect the people’s rights and reduce unnecessary disputes. But in practice, due to the impact of the old experience in the planned economy era, the administrative organs cannot satisfactorily explain the legal basis:some administrative organs did not quote legal provisions completely;some administrative acts only have the name of law without specific provisions;some haven’t refer the legal norms to the lowest level. However, our country’s legislation only has abstractly define about above problems, and the academic research also don’t point out the direction for solution. So the author decide to analysis the court’s attitudes of the problem of “not quoting” through a loss of trials.Different courts have different understandings of the problem of “not quoting”in different times. Even for the same kind of “not quoted”question,different courts’ trial also showed a variety of possibilities. Naturally,different opinions of the trial will lead to different trial logics, for example “unclear” type, “straight trial”type, “simple trial” type, “hierarchical trial” type. While no matter what kind of types is uncomprehensive.In the face of chaos trials, it is necessary to find the essential reason from thebackground. Because the due process late started and develop slowly, the system_“duty to give reasons”has experienced a difficult process, which directly influence the judgments. On the basis of defining the nature of the problem, that is easy to explain why it will happen the conflict between the “legal”and “illegal” judgment,why the judgement of “violation of legal procedure”appeared to shrink and the judgement of “erroneous application of law” been extended to apply. Then to put our sight abroad, the study of the connotation of “duty to give reasons” about relevant countries abroad provides us a useful reference to answer the bellow questions: should the exemption system be introduced, whether administrative organs’ amendment should be recognized?The ultimate goal of the case study is to extract some common experiences and rules to promote the system’s perfection and develop the theories. In order to further play the role of the judicial system, to ensure the executive power, to prevent the system of “duty to give reasons”from formalism, we need to t perfect the trail about“not quoted” question as bellow: on the bases of admitting the reference value of the guiding case No.41, define the judge’s principle and exception; add amendment’s object, set the time limit for amendment, give the parties the right to start amend;determine the applicable circumstances about different judicial opinions; form a complete set of decision logic.