On The Construction Of Administrative Counterpart’s Right Of Resistance System

As long as there is the space of activity, public rights of the citizen’s private right is likely to infringe.Efficiency determines the early administrative law of the administrative activities of administrative legal relation between the two sides of power and right configuration is not equivalent, regardless of whether or not the legitimate and reasonable administrative decision, administrative relative person is only the first subject, which increases the likelihood of public rights infringement of private rights. With the progress of democracy and the rule of law in our country, the administrative relative person’s status, the public power is limited by more and more.In this process, academia began to gradually strengthen the research of the administrative relative party rights, administrative right to resist such a seemingly sensitive rights in the past may also begin to enter the field of vision of scholars.If the other party relies on the general recognition levels can determine the significant and obvious illegal situation, the other party can through the reasonable form of resistance.However, as we such a through thousands of years in authoritarian governance, to establish a complete system of administrative right of resistance will inevitably encounter obstacles.Thankfully, many foreign countries have established the system of administrative right of resistance, provides us experience for reference, the domestic judicial practice also right of emergence of resistance to the real case responded.The full text is divided into the following several parts:The first part, the right of administrative relative resistance overview.First level right of resistance, analyses the constitution and administrative law review introduced the western constitutional right of resistance development in developed countries, and brings up the source of the administrative right of resistance;Secondly explains the concept of administrative right of resistance and its characteristics and with the power, the application of defense self-help remedies make a difference;Finally emphasizes the theory of administrative right of resistance value and significance.The second part, the administrative relative person’s right of resistance on the administrative law of the foundation.Focuses on the theoretical basis of administrative right of resistance, thus draw the conclusion:the existence of administrative right of resistance has a profound theoretical support.Specific to the administrative law field, direct theoretical support of administrative right of resistance is mainly "presumptive legality relative theory" and "invalid administrative action" theory.Points out that the traditional theory of presumptive legality absolute ignored by too much emphasis on the value the certainty of law and protect the legal rights of the other party, the presumptive legality of administrative behavior should only have relatively, significant and obvious illegal invalid administrative act shall be assumed to be valid, the other party may deny its effectiveness on its own.The third part, analysis of the present status of Chinese administrative for the other party right of resistance.Discusses our country the system of administrative resistance of theoretical research and the status quo of the legislation and judicial practice.Theory mainly analyzes our country academic circles dispute and research status of resistance right system.Legislative, judicial practice is mainly exist in the analysis of China’s current law and reality of "invalid administrative act" and "administrative right of resistance" legislative, judicial status, and the conclusion.Finally points out some flaws in the existing system, and carries on the summary.The fourth part, foreign administrative relative right of resistance theory and system.Through the introduction of France, Germany, Japan, the United States system of administrative right of resistance, it is concluded that the administrative right of resistance is mainly the theory and system of the civil law countries and regions.In these countries and regions, the standard of invalid administrative act is more and more tend to be unified, "big and clearly said" is the mainstream views of the academic field and practice field, "confirmed invalid lawsuit" is a specialized trial court review to determine the invalid administrative act.The fifth part, the Chinese administrative relative improvement of the system of right of resistance.First of all, on the object standard of administrative right of resistance, the standard and basis of invalid administrative act judgment;Second wish in the system to the exercise of the right of resistance has a clear and perfect the rules and on the exercise of right of the other party against recommending that responsibility and, through to the other party liability rules, make the other party to the exercise of the right of resistance holding a kind of respect, goodwill and cautious attitude;Finally in order to ensure the effective execution of administrative relative resistance power, build and perfect the corresponding guarantee mechanism to matching, main is to perfect the new "administrative procedural law" formally established the of "invalid" of administration system, the burden of proof and the system of limitation and to establish an v. stop execution.The sixth part, summary. To summarize the full text and reaffirmed the right of resistance to the administration support.Hope to the modification of "administrative procedural law" as an opportunity to formulate "administrative procedural law" as soon as possible clear rules of administrative right of resistance.