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Research on the Application of the Reply by the Administrative Organs in the Administrative Proceedings

Author: YeXiangYu
Tutor: WuXiaoQiu
School: Southwest University of Political Science
Course: Constitutional and Administrative Law
Keywords: Administrative Reply Administrative Proceeding Legal Validity Application
CLC: D925.3
Type: Master's thesis
Year: 2012
Downloads: 50
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Abstract


At present, when exercising the administrative functions, the administrative organs inChina, apart from applying the relevant law, administrative regulations and rules, extensivelyuse the administrative replies as the base to solve the technical problems and the problems notdefined by the upper law and hereby conduct the specific administrative acts. In theadministrative proceedings filed for the specific administrative acts based on suchadministrative replies, the administrative replies are often the focus between the complaintand the defendant and the people’s courts also have big controversy over whether theadministrative replies can be applied in the trial of the administrative cases.The theory circle classifies the administrative replies into “other regulatory documents”other than law, administrative regulations and rules. A great many scholars have made certainresearches on the application of “other regulatory documents” into the administrative trial. Onthe basis of such researches, the author endeavors to proceed with the actual cases in thejudicial practice, take the nature, legal effect and other issues of the administrative replies asthe research direction, analyzes and probes into several controversies over the application ofthe administrative replies in the administrative trial, proposes that the administrative repliesmay be used as the application base in the administrative proceedings, attaches greatimportance to the standards for the application of the administrative replies in theadministrative trial and proposes several suggestions for the actual application of theadministrative replies.Apart from the introduction, this paper consists of four parts.Part One takes as the example the administrative proceeding case in which the partyrefuses to accept the demonstrative sanction for the trademark infringement violation by theadministration for industry and commerce met by the author in the work and draws out thecontroversial dispute, whether the administrative replies can be used as the application base inthe administrative trial.Part Two introduces three disputes over whether the administrative replies can be used asthe application base as for the focus of the case, makes preliminary analysis and summary forthe points of the parties and the reasons and proposes the points of this paper on the basis ofsummary. Part Three is the focus of this paper and by the method of combination between theoryand practice elaborates the point that the administrative replies which meet the requirementsof legal validity can be used as the application base in the administrative trial. The elaborationconsists of three parts: firstly define the definition of the administrative reply, list thecategories, state the features and then put emphasis on the analysis of the nature of theadministrative reply (this part is the base of the argument of this paper), further elaborate thelegal effect of the administrative reply from the perspective of the effect within theadministrative organs and the external effect on the citizens, legal persons and otherorganizations and finally the author focuses on the standards of the administrative replies asthe trial base of the validity of the administrative acts and proposes three effective elements ofvalidity to expound the point that the administrative replies which meet the requirements oflegal validity can be used as the application base in the administrative trial.Part Four proceeds with the summary to the research of this paper, defines of the pointselaborated by the author and the opinions that the demonstrative reply should be applied tothe case in this paper. Finally the author proposes relevant suggestions for how to accuratelyapply the administrative reply to the administrative proceedings in the current situation toensure the tightness of the judicial review and the accuracy of the quotation of the judgmentdocument.The author has long been working in the front line of the administrative law enforcement,touching various administrative replies in the work and often making thoughts anddiscussions in the actual application. This paper is some knowledge gained from the thoughtand research of the author, hoping to make some innovations and make some efforts for thetheoretical research and law enforcement and judicial proactive in the administrative law.

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