The Study On Abolishment Of Beneficial Administrative Action

Regarding the abolishment of beneficial administrative action,relative research findings are insufficient,relative legislation needs to be improved,and the expression mode of it is not unified.These phenomena above may lead to the damage of the private party’s interests and the stability of law.The public interest may be affected as well.In this study,the core issue is how to protect rights and interests of the private party from illegal or unreasonable damages while safeguarding public interests through the abolishment of beneficial administrative action.In terms of the theoretical basis,it includes the theory of determinative force of administrative action,the theory of changed circumstances and the principle of public interest,and the principle of reliance protection.The judgement criterion of the abolishment of beneficial administrative action could be summarized as five prerequisites,that is,the abolishment itself accords with the components of concrete administrative actions,the abolished administrative action is legal,the elimination of the administrative action’s legal effect is due to public interest,the elimination of the administrative action’s legal effect is not due to the private party and the elimination of the administrative action’s legal effect is not natural.And two legal consequences of the abolishment of beneficial administrative action could be the reference for judgement,that is,the administrative organ bears the liability of compensation and the legal effect of the abolished administrative action is eliminated afterwards in principle.In terms of the expression mode,there exist nominal abolishment and substantial abolishment in the area of legislation,jurisdiction and enforcement of law.Besides abolishment,the former may bear the substantial meaning of termination,revocation,etc.The latter may adopt the expression mode of withdrawal,recovery,revocation,termination,cancellation,alteration,etc.,or the conduct mode of refusing to renew beneficial administrative actions,ordering to demolish or close,etc.Different methods of regulation and unification need to be adopted according to different types.In terms of the subject,the administrative organ which made the beneficial administrative action is entitled to abolish it in principle.The superior organ,judicial authority and organ of state power are not entitled to directly abolish the beneficial administrative action in principle,and only own the power of supervision.Other competent administrative organs are entitled to conduct actions with substantial effects of abolishment when there is explicit legislative authority.In terms of the rule of application,it could be divided into two layers,which are conditions of legality and requirements of reasonableness.Conditions of legality could be further divided into two layers,which are general prerequisites of application and specific circumstances of application.The former includes the need of public interest and explicit legislative authority in principle,the latter includes the change of laws or normative documents,or the significant change of objective conditions.Requirements of reasonableness mainly includes the requirement of necessity,proportionality,equality and due consideration.In terms of the requirement of procedure,if there is no direct provision,the applicable part of the making procedure of the abolished beneficial administrative action shall be applied in principle,and the requirement of due process shall be complied with.Normally,optional procedures,such as hearing,could be held through the application of the private party after being informed.In principle,the procedure of compensation shall be initiated before the decision of abolishment is made,and the administrative organ shall consult with the private party.