Study On The Limited Justiciability Of Administrative Interviews

Administrative interview is a new type of administrative management,which may have a substantial impact on the rights and obligations of citizens.In the academic circles,there is a dispute between the negative theory and the positive theory on the view of the justiciability of administrative interviews.From the perspectives of traditional administrative behavior theory,the non-mandatory nature of administrative interviews,the purpose of administrative interviews,and the law enforcement pyramid theory,the theory of negation believes that administrative interviews are nonmandatory,a kind of "goodwill reminder",and belong to the bottom of the law enforcement pyramid.The weakest persuasion mechanism,blindly incorporating administrative interviews into the scope of judicial review will increase the cost of administrative law enforcement and go against the original intention of the administrative interview system.From the perspective of legal effectism,the combination of rigidity and softness,and the protection of rights,the affirmative theory believes that administrative interviews not only have a "flexible" aspect,but also have the nature of expansion and aggression.Use the name of an interview to evade legal responsibility.Administrative interview has the characteristics of "combining rigidity and softness".Its purpose is not only to remind and warn,but also to supervise and punish.It belongs to the comprehensive means of persuasion and warning in the law enforcement pyramid model.The negation theory of the justiciability of administrative interviews is divorced from the actual operation of the system,and does not conform to the development direction of the Administrative Litigation Law.The disadvantage of the affirmative theory of the suitability of administrative interviews is that it does not classify administrative interviews as a new type of administrative act,and does not limit its suitability in combination with the theory of the scope of administrative litigation.At this stage,it is unrealistic to formulate separate laws and regulations for administrative interviews,and giving administrative interviews limited justiciability is conducive to breaking the shackles of administrative interviews development.Its specific connotations include: the vast majority of administrative interviews are not actionable;a few administrative interviews are actionable,but subject to certain restrictions,and the intensity of judicial review should be different;the limited actionability of administrative interviews It can be gradually released according to the development of the times.The limited actionability of administrative interviews does not have the obstacles of "should law",which is in line with the purpose of my country’s Administrative Litigation Law,and is more in line with the trend of relaxing the qualifications of administrative litigation plaintiffs.Irrational,administrative public welfare and efficiency.The actionable administrative interview behavior should satisfy the requirements of external validity,substantial influence and necessity of judicial review at the same time.In terms of specific types,opinion-based,reconciliation-based,and mediation-based administrative interviews are not actionable,but early-warning and supervisory-based administrative interviews that meet the requirements should be included in the scope of judicial review.The connection between the administrative interview and the current administrative litigation system can be considered from the following aspects: first,the application of the bottom line of the Administrative Litigation Law;second,the establishment of a "dual defendant system" for administrative interview and litigation;third,the principle of mediation is allowed to be applied;fourth It is to clarify the types of judgments in administrative negotiation litigation;the fifth is to review normative documents incidentally in administrative negotiation litigation.