Abstract administrative act on China27s judicial immunity

1、/?i137888#Abstract administrative act on Chinas judicial immunity Summary abstract administrative acts of judicial immunity refers to the abstract administrative acts can not be the subject matter of litigation in the judicial review process. According to Administrative Procedure

2、Law requirement, Chinas implementation of administrative acts of abstract judicial immunity, but the abstract judicial review of administrative acts in our country is still subject to the constraints of varying degrees of judicial power. Abstract administrative act in accordance with Law by the auth

3、orities and higher administrative authorities. Chinas administrative acts in the abstract question of judicial immunity, there are some yet to be clarified to know the problems of abstract judicial review of administrative acts have also been practical problems monitoring constraints. The Article ar

4、gued that building a socialist country ruled by Law from the end, and in accordance with Chinas basic social system, the existing features of the Constitution and the present conditions, neither deal with all administrative actions to implement the abstract judicial immunity, nor should be fully lif

5、ted judicial immunity, judicial immunity should be restricted to an abstract form of administrative regulations, administrative acts. The Article suggests, from the long-term consideration, should be amended to the Administrative Procedure Law, and set up a special agency under the National Peoples

6、Congress to strengthen the supervision of the administrative rules and regulations; from recent considerations, the court can clearly written report to the Standing Committee, special systems and special to the executive the proposed system of Justice in writing to ease the administrative act due to

7、 the abstract the problems posed by judicial immunity. Keywords: abstract administrative acts, judicial immunity, judicial review, supervision, and specific administrative acts The rule of Law means the rule of law. The rule of law also means that everything that is legal significance of acts and di

8、sputes can be submitted ultimately to judicial review or settlement. This is common practice in many countries the final decision of Justice principle. However, the rule of law and the final decision of Justice principle of the country, out of politics, economy, culture, traditions, practices and le

9、gal technical considerations, but also tend to express the legal requirements to specific areas of the main , specific properties behavior and specific areas of dispute provide judicial immunity, which require a specific subject, behavior and disputes from the jurisdiction. In China, the abstract ad

10、ministrative act is one of the acts from the jurisdiction of . The so-called abstract administrative act, with the Administrative Procedure Law, the specific administrative act corresponds to the concept refers to the executive authorities to formulate, publish generally binding normative document,

11、and its concrete manifestation in the form of administrative rules, regulations, and have universal binding decisions, orders. The abstract administrative act of judicial immunity refers to the abstract administrative acts can not be the subject matter of litigation in the judicial review process, i

12、n other words, the abstract administrative acts from the jurisdiction of the court trial. Whether the abstract administrative acts should be to implement judicial immunity, our country since the late eighties there has been controversy ever since. One view was that judicial immunity should be implem

13、ented; other views are opposed to the implementation of judicial immunity 1 (P.428). Administrative Procedure Law, abstract administrative act on the administration of Justice exemptions, not only failed to put an end to this dispute, but also come under increasing criticism. This paper on this poin

14、t to talk about the personal views of the appropriateness, please Fong corrected. 1, Chinas administrative acts of abstract legal provisions to implement judicial immunity and the corresponding oversight issues Chinas Administrative Procedure Law Article 12 and Article 2 provides that courts will no

15、t be accepted for administrative rules, regulations or administrative authorities to formulate, publish a universally binding decisions and orders, to bring proceedings. This was the implementation of abstract administrative acts of express jurisdictional immunities of legal provisions, but also in

16、practice the court refused to accept the abstract administrative action to prosecute a direct legal basis. Chinas Administrative Procedure Law, the above requirements, excluding the abstract administrative acts as subject matter of litigation into the possibility of judicial review process, but also

17、 blocked the Courts abstract judicial review of administrative acts to the positive channels of supervision, abstract administrative act has become the jurisdiction of the blind spot . Chinas implementation of the abstract administrative acts judicial immunity, does not mean that the courts of all t

18、he abstract administrative acts without any form of constraints. In the specific administrative act has been, into the context of v, abstract administrative act as an administrative organ to implement an important means of administration, in pArticular, the specific administrative act as a regular b

19、asis, there can not leave and judicial review of the relationship. Abstract administrative act, by its own level, the difference is still subject to judicial review of the constraints to varying degrees. First, as evidence of a specific administrative act subject to judicial review of the constraint

20、s of Administrative Procedure Law Article 32 stipulates that the defendant to the specific administrative act of the burden of proof should be provided to the specific administrative act is based on the evidence and normative documents. Here normative document apparently including those belonging to

21、 the abstract administrative acts of regulatory documents. Moreover, here as an abstract administrative acts of the normative document is a specific administrative act in the form of evidence. Litigation theory tells us that the evidence must be verified before a final decision based on 2 (P.148). T

22、he specific administrative act, as evidence of the respondent abstract administrative acts, and only after verified before the court in support of the specific administrative act evidence. Clearly, in the abstract administrative acts as evidence of a specific administrative act occurred, it must acc

23、ept the courts review of its judgments. For the illegal abstraction of administrative acts, the court is entitled to a specific administrative act from the exclusion of valid evidence. This at least can be understood as the courts the right to reject the abstract administrative act on the applicatio

24、n of specific administrative acts of the defendant. Second. As the courts of basis and subject to the constraints of judicial review Administrative Procedure Law Article 52 stipulates that peoples courts to administrative regulations and administrative cases based on article 53 of the peoples court

25、to hear administrative cases refer to rules and regulations. This is the administrative cases before the Court (ie, review of specific administrative acts) applies the standard requirements. Tongli in accordance with law, belong to a non-judicial power to determine the right 3 (P.416), its standard

26、of right and wrong to judge the laws enacted by the legislature in advance (ex post facto laws does not respond to acts that occurred prior binding, and this is the law non-retroactivity principle), while the defendant should not be the executive authorities to develop their own normative documents.

27、 However, due to Chinas Constitution clearly gives the power to draw the State Council, administrative regulations 4 (Article 89), and that the constitution would be formulated by the State Council, administrative regulations positioned as second only to the Constitution and laws, but higher than lo

28、cal laws and regulations of the important sources of law , therefore, administrative regulations, although the highest state administrative organ to develop, but in our legal system has a special status as the courts determine the legality of specific administrative acts of the standard not ideal, b

29、ut at least is now required to. Must also be noted that administrative rules and regulations as the court to determine the legality of specific administrative acts of the standard is not unconditional. According to the Constitution, our laws and regulations of different ranks of the implementation o

30、f the principles of conflict is invalid, the law shall not contravene the Constitution, administrative regulations shall not contravene the Constitution and laws, and low-order legal norms and the high-order legal norms can not contradict, contravene are not valid 4 (the first article 62,67,88,100).

31、 Once the administrative rules and regulations inconsistent with the Constitution and laws, at least part of the conflict should be null and void. This is in fact the court in reviewing the legality of specific administrative acts of the process, with examination or found that the specific administr

32、ative act is based on whether the administrative rules and regulations inconsistent with the Constitution and laws of the authority and responsibility. Once the court found a conflict, in particular, is the discovery of specific administrative act is based on provisions of administrative rules and r

33、egulations conflict with the Constitution and laws, in accordance with the existing system, the courts have the power to at least temporarily not apply at the same time the court has a duty to the NPC or its Report of Standing Committee. But the Courts authority to direct the cancellation of the adm

34、inistrative rules and regulations, nor outside the review of specific administrative actions, individually and specifically review of administrative regulations. In the administrative proceedings in light of the status of the status of regulations and not explicitly a universally binding decisions a

35、nd orders (hereinafter referred to as other normative documents), the situation is quite different. According to the NPC Standing Committee Wang Hanbin on behalf of the Administrative Procedure Law (draft), the description, right in line with laws, administrative regulations, rules and regulations,

36、the court must refer to trial, do not meet or do not fully comply with laws, administrative regulations, the principles and spirit of the rules and regulations , the court can have room for flexibility. 5 (p.189) This would in fact give the court review the legality of the regulations, identificatio

37、n of rights and the right to refuse to apply. Once the regulations are not being applied, the same can be understood as the court denied the respondent of the regulatory effect of the specific administrative act, but without prejudice to the regulatory process in the administration continue to serve

38、 as the basis for other specific administrative act. The analysis of the regulations also apply to other regulatory documents. Court approval of the two forms of the constraints of the abstract administrative acts, to a certain extent, compensate for the abstract administrative acts for certain defi

39、ciencies in the implementation of judicial immunity, but can not fundamentally solve the problem. Because these two forms of constraints are incidental (ie, only after the specific administrative act as defendants in order to collateral review of abstract administrative acts), closed (that can not f

40、orm pairs of abstract administrative acts of public proceedings confrontation) and incomplete (that is, the abstract administrative acts can not be a judicial determination), the limitations of large, its practical effect is minimal. Chinas implementation of the abstract administrative acts judicial

41、 immunity, nor rejection of power and administrative organs according to the Constitution, the Organic Law and the Administrative Reconsideration Law of the abstract administrative acts supervision. Chinas Constitution, article 67, paragraph 7 provides that: the NPC Standing Committee have the right

42、 to revoke the State Council formulated the same Constitution, laws contradict the administrative rules, regulations, decisions and orders. Article 89, item 13, 14 provides that: State Department the right to alter or revoke the ministries, the Commission issued its inappropriate orders, directives

43、and regulations, the right to alter or revoke the local state administrative organs at all levels of inappropriate decisions and orders. Article 104 provides that: at the county level above local Peoples Congress the right to revoke this level peoples governments of the inappropriate decisions and o

44、rders. Article 108 provides that: Local peoples governments at all levels have the right to alter or withdraw their respective departments and lower-level peoples governments at all inappropriate decision. Chinas Organic Law of the State Council, Article 3 reaffirms the constitutional article 89, it

45、em 13, 14 entry requirements. Local peoples congresses and local governments at all levels of the Organic Law Article 8, paragraph 11, article 9, paragraph 9, article 44, paragraph 7, article 59, paragraph 3, in addition to article 104 of the Constitution reaffirmed and 108 requirements, further pro

46、vides that: townships, nationality townships and towns of the Peoples Congress the right to revoke townships, nationality townships and towns of the Peoples Government of inappropriate decisions and orders. Chinas Administrative Reconsideration Law Article 7 provides that the Chief counterpart that

47、the specific administrative act is based on the abstract administrative acts are not illegal, in the application for reconsideration of specific administrative act, they can make a body to review the abstract and the review of administrative acts application. But heres the abstract administrative ac

48、ts is limited to the following regulations, normative documents, but also to the abstract administrative acts of the review process is not open to the counterpart, the counterpart to the abstract administrative acts can not be the subject for a review. 6 (p.42-44) of Chinas Constitution, the Organic

49、 Law and the Administrative Reconsideration Law of the above requirements will include the abstract administrative act administrative act, including all the places at the same level of all organs of state power and the higher administrative authorities under the supervision of it reflects the people

50、s congress system characteristics and the characteristics of the administrative relationship. However, the functions and authority conference system work restrictions to the supervision of administrative acts can not do a regular, inevitably become a mere formality. Higher administrative organs of t

51、he supervision of the administrative acts are within the administrative system of self-scrutiny, and its limitations are relatively clear. By the above provisions and analysis can be seen, Chinas abstract administrative acts of supervision and control system is defective. 2, in the abstract administ

52、rative acts of judicial immunity to clarify a few issues to be understanding 1, the Constitution and under the supervision of the Organic Law does not exclude the right of judicial review of administrative acts abstract Supervision There is a point of view, the Constitution and the Organic Law has b

53、een the examination and supervision of the abstract right to administrative action by the authorities and higher administrative organs of the exercise, can not and does not need to to the courts and 7 (P.134) 8 (P .34). This view is an abstract administrative acts to support the main reasons for jud

54、icial immunity. In my view, this is the provisions of the Constitution and the Organic Law of the misunderstanding. Listed in the foregoing provisions of the Constitution and the Organic Law of the supervision is based on our organs of state power and the executive authorities, the relationship betw

55、een the executive and the design. Organs of state power in China at all levels, directly or indirectly by the voters elected, accountable to the electorate by electorate representatives supervision authorities in the country or regional supremacy is beyond doubt. By the executive organs of power gen

56、erated to the authority responsible to the supervisory authority is the authority of the executive body. Organs of power between the executive and this relationship determines the authority has a variety of ways to supervise the executive branch, including revocation of the executive authorities to

57、formulate and release of the unconstitutional, illegal administrative rules, regulations, decisions and orders one of the ways of its monitoring . The higher administrative authorities and between the lower-level administrative organs, administrative organs and their respective functional department

58、s although no relationship between generation and has been produced, but is being led under the leadership of sexual relations. Based on affiliation, the higher administrative authority to alter or annul inappropriate lower-level executive regulations, decisions and orders are being led by the leade

59、rship of the proper meaning. Further analysis, the Constitution and the Organic Law provides that the administrative rules, regulations, decisions and orders should be understood as the exercise of executive powers of all acts, including both the abstract administrative acts, but also including spec