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Research on Judicial Review of Administrative Provisions

Author: XieZuoZuo
Tutor: ChenDang
School: Zhejiang Technology and Business University
Course: Procedural Law
Keywords: administrative provisions judicial review plaintiffqualifications review methods standard of review
CLC: D925.3
Type: Master's thesis
Year: 2012
Downloads: 51
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Abstract


In China, the "administrative provisions" was included in the scope of legal supervision in the "Administrative Review" section7of the "provisions" into the scope of the review with the administrative review. The administrative provisions is the administrative authority for the implementation of laws, administrative rules and regulations, management and implementation of social development can be repeatedly applied, universally binding decisions, orders and administrative measures. The effect of administrative provisions, Compensate deficiencies and delay for the laws, administrative regulations, rules and ect, in order to improve administrative efficiency. However, in reality, due to the confusion of makers, there is no uniform standard setting process and the lack of effective oversight mechanisms and other reasons, led to the law and administrative regulations against the legitimate interests of the executive relative to the phenomenon have occurred. Some of the administrative authorities use the name of developing administrative regulations, infringement of the Administrative counterpart’s legitimate rights and interests. Article12of the Administrative Procedure Law of China stipulates:" The people’s court dismissed the citizens, legal persons or other organizations filed the lawsuit on the following matters:...(B)administrative rules, regulations or administrative authorities to formulate, publish a universally binding decisions and orders;......."this indicates that the Administrative provisions are explicitly excluded from the scope of administrative proceedings by the case, and means that during the proceedings, the legal validity of Administrative provisions can be review, but administrative provisions can not be declared illegal, and can not be revoked, changed or declared invalid. This issue received widespread attention in theorists and practitioners. I believe that, since in the "Administrative Review Law" has been included in the administrative provisions of the scope of application, we can learn from the experience of the administrative review the administrative provisions in case range of administrative proceedings, and then gradually expand the scope of the case when the time is ripe. At present, there are abundant of research on the administrative regulations. Most of them were researched on whether the administrative provisions can be included into the scope of the administrative proceedings, the problem of interface between Administrative review and administrative proceedings, and so. The problem of how to build a complete system of judicial review of administrative provides was lack of appropriate attention.This paper is divided into five parts to discuss the issue of building a judicial review of administrative provides.The first part is the overview for administrative requirements and the judicial review of the Administrative provisions. Divided into six small problems which are administrative provisions and their types, the characteristics of the judicial review of administrative provisions, the effect of the judicial review of administrative provisions, the status of China’s administrative provisions, the external effectiveness of administrative provisions, and the supervision of administrative provisions under the current system is Imperfect. By elaborate on this a few problems, features and functions of the judicial review of administrative provisions with the overall understanding.The second part is the jurisdiction and the plaintiff qualifications of the judicial review of administrative provisions. This section discusses that the review by ordinary courts or establish a special administrative courts review. I believe that the ordinary courts are more appropriate in the current legal system, and then the trial level was investigated. In the part of qualifications the plaintiff, this paper describes advantages and disadvantages of the administrative counterpart to prosecute mode and the prosecution to prosecute mode. And then came to a conclusion that a combination of litigation model of administrative counterpart to prosecute and the prosecution to prosecute is more appropriate.The third part is about the way of judicial review of Administrative provisions and the standard of review. In the part of reviewing the way, the author proposes a review that combination of collateral review and direct review is more appropriate. And elaborated some relevant issues, for example:time and the target of review, burden of proof, and so on. The part of review standard discussed the legality and reasonableness review standards in the judicial review of the administration provisions. Proposed substantive review combine with procedural review mode, and then has set an idea with specific standard of review.The fourth part is about the effectiveness of judicial review of Administrative provisions and accountability mechanisms. The effectiveness of judicial review including the types of the sentence, the effectiveness of verdict, retroactive effectiveness of administrative provisions after review, and so on. This paper describes the national compensation, civil service individual accountability system. And then proposed the disclaimer of administrative provisions infringe the right of administrative counterpart.The last part is this article’s conclusion and summary. And proposed the problems may be encountered and appropriate reform measures in the process of building a judicial review of administrative provides system. The second to the fourth part of the article is the focus of this article.

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CLC: > Political, legal > Legal > Chinese law > Procedural Law > Administrative Procedure Law
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