The Understanding And Application Of "not Having The Qualification Of Administrative Subject"

Article 75 of the new administrative procedure law promulgated and implemented in 2015 stipulates the confirmation of invalid judgment in the form of law,and the plaintiff can apply to the people’s court to confirm the invalidity of the action he or she sued in the case of major and obvious illegal situations such as the subject of the administrative act is not qualified as an administrative subject or has no basis.The provisions of this article to a large extent promote the enthusiasm of the court and the administrative counterpart in determining the invalid judgment.This paper mainly discusses the first confirmation standard of this article,that is,the subject of the administrative act is not qualified as an administrative subject.It is worth considering that "no qualification of administrative subject" is a criterion to confirm the invalidity of administrative act.Apart from the extent to which this standard can be applied and play a role in the judicial practice of confirming the invalidity,so far there is no official definition of the specific concept and clear scope of the understanding of the administrative subject.On the premise of not listing the scope of administrative subject,it may be possible for the courts at all levels to give different understandings on the basis of different understandings.On the other hand,does the administrative act that the implementing subject does not have the qualification of the administrative subject reach the degree of significant and obvious illegal? In the case of overstep of authority,the agent in his own name to engage in administrative ACTS and false administrative ACTS,and the plaintiff’s application for confirmation of invalid,the court will be invalid based on the provisions of the law or will be based on the illegal degree of the administrative act itself to determine whether it is effective? Determining the invalidity of an administrative act must be a major flaw in the invalidity of the administrative act.The implementer does not have the qualification of the administrative subject.At first glance,it seems that the executor can be regarded as a judgment basis without explanation.The main part of this paper explores the understanding and application of "not having the qualification of administrative subject".The first chapter starts with the qualification of administrative subject.It can be seen from textbooks and related scholars’ papers that the qualification of administrative subject is closely related to the administrative authority.According to the existing definition,it can be known that the subject of exceeding authority in the relationship of exceeding authority has no qualification as an administrative subject for the act of exercising beyond authority,the agent in the relationship of entrusting has no qualification as an administrative subject when the agent ACTS in its own name,not to mention the subject of false administrative act has no qualification as an administrative subject.The second chapter starts from specific cases,and through sorting out,the author finds that different courts adopt different degrees of "no qualification of administrative subject" in confirming invalid judgment.In the third chapter,the author analyzes the problem of "not having the qualification of administrative subject" in judicial practice on the basis of the second chapter.Court ascertained that the main body in ultra vires "does not have administrative subject qualification" but not determination of administrative act is invalid,the trustee body have a court is not implemented in the name of his behavior because of its "no" with administrative subject qualification and ruled invalid,in the act of false administrative court to "does not have administrative subject qualification" ruled invalid.And then there’s the same situation where you have the opposite decision in different courts.In the fourth chapter,the author puts forward four ideas on how to play a proper role in judicial practice without the qualification of administrative subject.That is to use judicial interpretation to list the scope of the subject that "does not have the qualification of the administrative subject",to clarify the qualification of the entrusted subject,to strengthen the priority consciousness of withdrawing litigation in the act of exceeding authority,and to standardize the subject that has no authorization or entrustment.It is inevitable that there are contradictions between theory and practice,and differences between legislation and judicature.The aim of exploring the clarity and accuracy of the applicable standard is to make it play a more powerful relief function in practice.