One, the administrative licensing dispute type

The act of administrative license is a concrete administrative action. "Administrative licensing law" article7Provides that: citizens, legal persons or other organizations have the right to bring an administrative lawsuit according to law of administrative licensing administrative organs to implement the. Clear administrative litigation scope, hand it to the court, promptly properly on administrative licensing administrative organs in the implementation of the judicial review, to prevent and reduce the scope of responsibilities is not clear because of wrong case or prevarication by the occurrence of the phenomenon; on the other hand, it is conducive to the citizen, legal person or other organization that they the legitimate rights and interests are violated administrative organs to implement the administrative licensing act, can promptly, effectively exercise their litigation rights in order to protect their legitimate rights and interests. Combined with the "administrative procedure law", "administrative licensing law" and other relevant laws and regulations and spirit, types of dispute to accept administrative licensing procedure of people's court can be summarized as follows:

(a) the administrative behavior of the administrative organ shall not permit the applicant v.

The so-called administrative licensing, refers to the administrative organs according to the citizens, legal persons or other organizations to apply, the decision to allow citizens, legal persons or other organizations in accordance with the statutory conditions enjoy certain rights, a specific administrative act to obtain a qualification and ability. To meet the licensing conditions of the applicant, the administrative organ shall not enjoy the administrative licensing, and achieve the deprivation or restriction of their certain personal rights and property rights, this is a kind of administrative tort behavior. In the practice of administrative law enforcement, administrative organs are usually the following reason to refuse permission:1The requested items, do not belong to the jurisdiction of the authority;2The authorities do not have treatment, requests the administrative authority or administrative duties;3People do not have the qualifications of the applicant, the relative;4The applicant does not have the statutory license conditions;5The administrative organ disorders, from the program settings, such as additional steps, additional conditions.^[1]Whether administrative organs in what reason to refuse permission, will lead to the request of the applicant is denied and unable to obtain an administrative license, that is to say, the applicant refused to process on the substantive rights and difficult to achieve. The administrative procedure law, the people's court to accept the applicant that administrative cases on the legal condition of the administrative organs to meet the requirements of the issuance of permits and licenses refuses or fails to respond to the. For the administrative organ to make a written decision on disapproval of the administrative license according to law, "administrative licensing law" article38Also provides that, "administrative organs shall explain the reasons, and inform the applicant of the right to apply for administrative reconsideration or bring an administrative lawsuit." Accordingly, the administrative organ specific administrative act is not the applicant for administrative license shall accept the scope of administrative cases belong to the people's court.

(two) the administrative licensing subject does not perform his duties or delay to perform the duties of administrative behavior

According to the constitution of our country establishes "all state organs and their staff must put one's heart and soul into serving the people" and the relevant laws and regulations, China's administrative organs have the protection of the legitimate rights and interests of citizens, legal persons or other organizations of the statutory duties. Administrative organs such as the statutory duty not to perform or delay the performance, the administrative organ itself is a dereliction of duty, in terms of the applicant is the right to damages. "Regulations on Administrative Licensing Law", the administrative organ on receipt of the applicant's application, shall start the approval process, and in accordance with the statutory procedures and legal conditions and standards act accordingly. If the administration does not start the approval process, make the administrative act or delay the repeated line responsibilities within the statutory time limit, the applicant has the right to administrative organ fails to perform his duties or delay to perform the duties for administrative litigation.

(three) third v. the administrative body should not be granted and the administrative license

From the main point of view, this dispute is filed by a person other than the administrative licensing rights of human beings, which we call third. One is third people think that exclusive or exclusive license to be restricted in the field, so the request for revocation of license, usually occurs in patent, trademark licensing and other fields. Some scholars called multiple applicants jointly apply for the same exclusive license, including unauthorized applicant granting permission to the illegal act v..^[2]Due to the nature of the exclusive license or exclusive right has the exclusive rights of common, common application in multiple applicants, inevitable can only determine a person with exclusive or monopolistic conditions or standards, while other applicants shall not, there may be delegated to others permit or exclusive right to deprive the fair competition act right, or by other illegal, as in a patent or trademark to the non implementation of the "prior application" principle is sues to the court. Another kind of circumstance is third people think that the administrative licensing act against their own rights and interests in other administrative management domain, has jural interests, this kind of infringement and licensing act which the prosecution, such as the demolition permit will be affected by construction units interest, construction permits will be able to affect the adjacent people's legitimate rights and interests. According to the provisions of China's "administrative licensing law" and related interpretation, a person interested in law and the specific administrative acts being sued, consider the specific administrative acts infringe upon their legitimate rights and interests, proceedings have the right.

(four) the licensee sues administrative subject to license revocation, to change, to withdraw the infringement

The administrative body for the original license revocation, withdrawal, behavior change, are means, administrative license so, resulting in litigation, the court's task is still on the act of administrative license review, whether administrative licensing administrative subject to relative people have achieved limited conditions, are in fact deprived of relative person vested interest of course, this case should be allowed to opposite party. But, like the revocation, suspension behavior while also to have the license conditions, but also may bring a lawsuit, but because the act of administrative license this review is not, but is usually the administrative punishment behavior, so this is not discussed.

In all, both legal and administrative licensing relationship in the direct counterpart, related or interests are affected; whether other interests of the scope of administrative license in the law relationship between the rights and interests of the administrative license law is outside the scope of the restricted or deprived people, have the right to file an administrative litigation on Administrative licensing.

 

Two,The definition of the plaintiff's qualification of Administrative Licensing Cases

In the administrative law and administrative procedure law textbooks, often the plaintiff in administrative management.^[3]In judicial practice, often the plaintiff qualified as a specific administrative act of the administrative relative person, and have an interest in a specific administrative act as third parties to participate in the proceedings. The relative person when specific administrative action is not a lawsuit, has an interest in a specific administrative act as third parties cannot participate in the proceedings, the third person's legitimate rights and interests will not be able to get judicial remedy. Therefore, the Supreme People's court "on the implementation of the administrative license law 'problems' of the people's Republic of China administrative procedure law interpretation" borrow twenty-seventh about "has interests in a specific administrative act lawsuit of other citizens, legal persons or other organizations can be used as third applicants to participate in litigation, or the people's court shall notify the provisions in the the lawsuit", in its article12Clearly stipulates: "the legal interests of citizens, legal persons or other organizations of the act and the specific administrative acts, may file an administrative lawsuit according to law." In order to solve the problems of plaintiff qualification of citizens, legal persons or other organizations interested in the administrative action. Since then, the definition of plaintiff qualification in administrative litigation Chinese extending from the "relative procedure rules" to "relator action rule".

Based on the provisions of plaintiff qualification in administrative license actions, will have the following characterization:

(a) the applicant for administrative license

Administrative license is in accordance with the administrative petition, who belong to that meet the statutory requirements to apply for the administrative organ to issue a permit or license, the administrative organ has refused to issue or fails to respond to the administrative organ, or deliberately, impose additional burden, or branch to the compulsory requirements, applicants may file an administrative action to the people's court. As the administrative license law thirty-first stipulation: "an applicant for administrative license, it shall submit the relevant materials to the administrative organ and reflect the real situation, be responsible for the authenticity and the substantial content of the application materials. Technical materials of the administrative organs shall not require the applicant to submit his application for administrative licensing matters unrelated and other materials." And as the law thirty-fifth stipulation: "the administrative license to the lower administrative organ review reported the superior administrative organ shall be decided, the lower administrative organ shall submit the preliminary examination opinions and all the application materials directly to a higher administrative authority within the statutory time limit. The higher administrative authority may require the applicant to provide the application materials again."

(Two)Interested party of the administrative permission

The scope of administrative license applicant's easy to determine, but the range of stakeholders by administrative licensing effect is the difficulty of how to determine the qualification of plaintiff. In America, individual or organization as long as the substantive interests adversely affected, but also the occurrence and administrative decisions this adverse effect is not too indirect to interested parties, including both the direct interest relationship, also including the indirect stake. Adverse effects of the so-called not limited to economic interests, including non economic benefits. In the area of our country Taiwan, because the procedures will affect Third People's rights or legal interests, the administrative organ in accordance with the authority or in accordance with the application, notify them to take part in the party.^[4]In the times of trial, the scope of administrative permission interested party mainly have the following several kinds of typical:

First, the problem of adjacent right, environmental right. Neighboring right is a civil law concept, refers to the non movable possession in the exercise of rights, adjacent to the realty of someone else enjoy certain right. According to the "general rules of the civil law" article83Article: "real property adjacent to the parties, should be in accordance with the spirit of the production and convenient life, solidarity, fair and reasonable, correctly handle the relations between adjacent section water, drainage, access, ventilation, lighting and other aspects of the. Adjacent to the square to obstruct or loss, shall stop the infringement, eliminate the obstruction, compensate for the losses." From this stipulation, adjacent relationship belongs to civil relationship. Of course, if the main civil infringement of neighboring rights act, is caused by the specific administrative acts of the executive authorities, is licensed by the administrative organ for approval, after the implementation of the neighboring right, with one party thinks that the approval, licensing act of an administrative organ infringes upon its legitimate rights and interests, to bring an administrative lawsuit to the court. According to "the Supreme People's Court on the implementation of 'of the people's Republic of China administrative procedure law interpretation of several issues" the'13Article1The provision of specific administrative acts being sued, related to the neighboring rights or fair competition right, citizens, legal persons or other organizations may bring an administrative lawsuit according to law.

With the development of society, environment right by more and more people's attention, the environmental right people believe in their homes being built nearby buildings destroyed landscape, the approval of construction permits administrative agencies to bring an administrative lawsuit, the environment right is the qualification of the plaintiff is a controversial question. From the analysis of the administrative procedure law. As well as the development tendency, shall have the qualification of plaintiff. As another important function of the administrative litigation is the supervision and administration according to law, safeguard the public interest, not just to the relief of the rights of the parties as the sole function.

Second, the problem of fair competition right. Fair competition right is the citizen, legal person or other organization of civil rights, generally speaking, violations of the fair competition right behavior mainly from other competitors, but in some cases, may also come from the administrative organ.^[5]According to "the Supreme People's Court on the implementation of 'of the people's Republic of China administrative procedure law interpretation of several issues" the'13Article1The provision of specific administrative acts being sued, related to the neighboring rights or fair competition right, citizens, legal persons or other organizations may bring an administrative lawsuit according to law. According to the "administrative licensing law" article53The provisions of article of this law, "the implementation of12Article2The matters of administrative license, the administrative organ shall make a decision through bidding, auction and other means of fair competition. However, the provisions of the laws, administrative rules and regulations provide otherwise, such provisions. Make the specific procedures for the administrative licensing decision of administrative organs through bidding, auction, in accordance with the provisions of the relevant laws, administrative regulations. Administrative organs to determine the winning bidder, the buyer in accordance with the tender, auction procedures, shall make a decision of administrative license, and in accordance with the law to the people, the buyer the administrative license. Administrative organs in violation of the provisions of this article, not using the tender, auction, bidding, auction or violates the procedure, damage the lawful rights and interests of the applicant, the applicant may apply for administrative reconsideration or bring an administrative lawsuit according to law." At the same time, according to the "administrative licensing law" article12Article2Provisions, specific industry Co., the development and utilization of natural resources, allocation of public resources and public interest is directly related to the market access, shall be entitled with certain rights can set the administrative licensing. In other words, these items of administrative license, the administrative organ shall make a decision through bidding, auction and other means of fair competition. Administrative organs in violation of "administrative licensing law" article53The provisions of the tender, auction, or not, in violation of the tender, auction procedures, damage the lawful rights and interests of the applicant, the applicant may apply for administrative reconsideration or bring an administrative lawsuit according to law.

Third, people interested administrative license review decision or appended in the review process third.^[6]Administrative licensing law fifty-seventh stipulation: "the administrative license with quantitative restrictions, two or more than two applicants are in conformity with the statutory conditions and standards, the administrative organ shall accept the application for administrative license according to the sequence of make a decision of administrative license. However, the provisions of the laws, administrative rules and regulations provide otherwise, such provisions." Suppose that a and B the applicant the applicant to apply to the administrative organ administrative license with quantitative restrictions, the administrative license authority to accept a priority of the applicant, the administrative license granted by the applicant if the applicant is not satisfied with a, B, to the superior administrative organ for reconsideration. The reconsideration organ after examination, the original administrative organs also accepted C applicants, in the review process additional C for third people, first in a applicant but later than B the applicant, the original administrative organs that accepts a applicant prior to affirm the fact mistake, cancel the original administrative act, the administrative license granted B the applicant. If the applicant to accept C, have the right to file an administrative lawsuit. In general, has interest relations with the administrative reconsideration and the original specific administrative behavior of the parties, in the administrative reconsideration procedure, should be added as third people, therefore in the review process is appended to third parties, may bring an administrative lawsuit.

Fourth, the question of. The Supreme People's court "on the implementation of the administrative license law 'problems' of the people's Republic of China" the explanation13Article (3Provisions: citizens, legal persons) or other social organizations "requires the administrative organ in charge to hold perpetrators liability", can bring an administrative lawsuit according to law. The earliest provisions of the victim has the right to sue is "Public Security Management Punishment Ordinance", "judicial interpretation" the plaintiff identification extends to all areas of the victim, but is not limited to the scope of the regulations on administrative penalties for public security. Similarly, there are also a lot of plaintiff qualification in administrative license the problems, such as the victims of environmental pollution etc..

(three) administrative license revocation and cancellation of administrative license

The licensee is based on the act of administrative license in the administrative organs of legitimacy and validity of trust and cooperation with the administrative organ, the administrative organ should be protected to the trust; and the licensee was due to the act of administrative license administrative licensing organ of interest should be protected, licensing authorities once revoke the permit of the licensed artificial behavior. Losses, shall bear the corresponding responsibilities; third people because they do not know the licensing act and flawed and the licensee has some kind of legal relationship, the due and licensing authorities to beneficial behavior of Licensee's interests should be protected; the licensee with malice made beneficial behavior from the licensing authority the benefits are not protected, because of its subjective malice is not administrative organ on the trust.

The cancellation of the administrative licensing, is based on specific facts, and by administrative organs according to the legal procedure to recover the administrative license or notice of administrative license lose effectiveness. The so-called specific fact mainly refers to6Situation: administrative license expires but has not been renewed; administrative license given to the qualification of citizen, the citizen dies or loses the capacity to act; legal person or other organization is terminated according to law; administrative license shall be revoked or withdrawn, or the certificate of administrative license is revoked; not because of force majeure the administrative licensing item cannot be implemented; laws, regulations of administrative license shall be canceled in other circumstances. Accordingly, the debate on six kinds of situations for the cancellation of the administrative licensing and administrative organs shall conduct the relevant administrative license cancellation procedures in accordance with the law of obligations and legal persons or other organizations administrative organ fails to perfect the obligation of a citizen, has the qualification of plaintiff, have the right to bring administrative litigation.

(four) the person penalized

Administrative licensing law for the first time in the system level administrative order penalty provisions. The Seventy-eighth and the seventy-ninth rules: "the administrative license applicant conceals relevant information or provides false materials for applying for administrative license, the administrative organ shall not accept or not to grant an administrative license, and shall give it a warning; the application for administrative license directly concerns public security, human health and safety of life and property, the applicant shall not re apply for the administrative license within a year." "Licensee by cheating, bribery and other illegal means to obtain an administrative license, the administrative organ shall give an administrative punishment according to law; the administrative license directly related to public security, personal health and safety of life and property, the applicant shall not apply for the administrative license again within three years; constitutes a crime, shall be investigated for criminal responsibility according to law." The administrative punishment order is the administrative organ to maintain the administrative order based on the past, for violation of administrative obligation, which impose penalties for outside the penalty, funding for the sanctions.^[7]

Of course, due to the requirement of administrative license and administrative licensing organ to perform its statutory responsibility for administrative licensing procedures, illegal, for administrative licensing fee, for the implementation of administrative licensing law, because of lack of supervision of administrative licensing organ an administrative license procedure qualification of plaintiff, unable to enumerate exhaustively, but according to the relaxation of the legislative purpose of the administrative licensing law and the plaintiff qualification of plaintiff qualification, will make the definition of the diversified and complicated, and likely to occur with third coincide with the replacement problem.^[8]

 

Three, judicial review of Administrative Licensing Act

Judicial review on administrative licensing act, generally from the following aspects:

(a) to the subject of examination. The provisions on administrative licensing, the NPC and its Standing Committee, the State Council, the NPC and its Standing Committee of province, autonomous region or municipality directly under the central government, the NPC and its Standing Committee as well as the larger city, province, autonomous region, or municipality directly under the central government, in accordance with the provisions of the administrative license law authority can set the administrative licensing. Other state organs, or even the various ministries of the State Council, shall have no right to set administrative license. Is mainly to the licensing subject review. Examine whether the licensing subject is established in accordance with the law, whether to have the statutory licensing authority, especially the licensing act of authorization subject and administrative principal subject, the focus of the review of its qualifications have.

(two) the privilege review. Should focus on the review the licensing organ is the statutory authority, whether they are beyond the authority of the phenomenon. In particularly, the administrative licensing law abolished the State Council regulations set the administrative licensing authority. The main reason is: the State Council on the reform of administrative examination and approval system when it has decided to cancel setting the power of administrative license of the various departments of the State Council regulations, in order to prevent the departments empowered, self enforcing, extending the power; if the administrative departments have issued the need to continue to implement, can rise to the administrative regulations in accordance with the law; if the needs of various departments the enactment of administrative licensing in the field of administration, and time to rise to administrative regulations, when necessary, the State Council administrative licenses may be established in the form of issuing decisions. This is also the administrative licensing law and the law on administrative punishments in the State Council regulations power difference set. Its purpose is to prevent the departmental protectionism, is conducive to the improvement of the unified socialist market economy.

(three) for the purpose of law review. Law enforcement purpose and motivation mainly review the licensing organ is a violation of right, abuse of rights. Law enforcement of administrative license is to realize the legislative security, order, freedom, rights, the value of the security. However, for the implementation of administrative licensing act of legislation, the objective value at risk: if the administrative license by law enforcement abuse, not only can not guarantee to achieve the purpose of legislation, value, and may endanger the safety of people's life, health and the interests of the state, the normal order of disrupting the normal order of social economy and people's lives, hinder economic development. Therefore, to strengthen the legal norms of administrative licensing act is very necessary.

(four) the licensing examination. The administrative license law drafting laws and modified by two aspects of abolishing legal norms, rules set the administrative licensing procedures, principles of openness, fairness, justice embodies. The nineteenth article of the law:"The drafting of the draft law, draft regulations and the provinces, autonomous regions, municipalities directly under the central government regulations, plans to establish an administrative license, the drafting unit shall take the hearing, demonstration and other forms to listen, and to establish departments to explain the necessity to establish the administrative license, the economy and the society and the influence of the opinions heard and adopted the situation."Licensing procedures should be law enforcement procedures and legal instruments sound. Look from practice, both from the law enforcement procedures or from the legal documents are not standard phenomenon. The format, content and some permission or license is not standardized, and some programs are not inform the parties of the litigation, the lack of a delivery receipt of.

(five) for a review of the evidence. Lack of evidence of the case shall revoke the license and pursue the relevant personnel responsible. The special nature of administrative licensing cases should follow the administrative licensing law, pay attention to the evidence relevance, legitimacy and authenticity of confession rules, rules of evidence exchange, administrative law enforcement personnel as witnesses to testify in court, professionals to testify in court system, the evidence of the defendant refuses to appear in court without justified reasons the examination question, involving state secrets, commercial secrets or personal privacy and other evidence.

(six) of the applicable law review. In the review should pay attention to legal terms licensing authorities cited is accurate, for the use of the laws and regulations are appropriate, whether it meets the purpose of law and spirit. The implementation of administrative licensing law, need to clean up the current administrative permission, clean up the scope of administrative license law, including the administrative regulations, local laws, regulations and normative documents of administrative license set; focus on cleaning for the state department regulations, local people's government rules and other normative documents set. In the implementation of the administrative license law, applicable laws and regulations, administrative license involves four aspects: one is the joining problem between the new and old method; two is the legal rules applicable problem; three is discretionary legal concepts and legal consequences of uncertain; four is the world's only our country promulgated a unified administrative licensing law, the relevant provisions on administrative licensing requirements and specific laws, administrative rules and regulations of the specific provisions of combining.

 

Four,       Review of Administrative Licensing Cases

The degree of judicial review on administrative dispute is refers to the court competent scope and scope of review of administrative acts supervision can appeal to the.^[9]This practical and plaintiff qualification are defined intrinsically linked. Can say, they are demonstrating a problem from different angles, namely the scope of accepting cases of administrative litigation problems. Define if the plaintiff qualification is to determine the scope of accepting cases of administrative litigation scope from the body, so the judicial review on administrative licensing behavior is from administrative litigation object delineation of the scope of accepting cases. Both are verified mutually, promote mutually, complement each other, synchronization, mutual development.

And the plaintiff qualification definition controversial, judicial review of administrative license is often controversial. The dispute mainly manifests for the administrative license, is concerned with the direct interest relationship of rights and obligations should be included in the scope of judicial review in administrative litigation, or the direct interests relating to administrative license and the relationship between the indirect interest relationship of rights and obligations will be included in the scope of judicial review in administrative litigation. I agree with the latter opinion.

First, the administrative licensing act as an administrative body to fulfill the administrative authority to act, make not only relative to the specific administrative management rights and obligations have the influence, and may also have an impact on other relative outside relative specific administrative rights and obligations, the impact is an objective existence, not according to the subjective understanding denied.

Effect of second, this kind of behavior indirectly caused by, its indirectness is actually relatively. For the victim, affect their interests, is the direct cause of administrative licensing act. Such as, construction permits behavior to the surrounding people as well as the influence of neighboring right.

Third, the rights and interests if not included in the administrative proceedings supervisory review, is bound to create a blank part of the supervision of administrative power, also make this part of the rights and interests of legal relief in no case.

Therefore, the judicial review of administrative licensing act should be delineated in a real impact on the obligations of the legal person or other rights of citizens, behavior within the organization.

The people's court in the trial of administrative lawsuits, censorship and is a very important problem. Because of the different administrative license, the administrative license procedure different, the review by the people's court standard should be unified, and should be in accordance with China's "administrative procedure law" and the Supreme Court judicial interpretation of the provisions of. Administrative license procedure of judicial review is related to the degree of relationship between the executive power and judicial power, but also relates to the responsibility division of labor between the administrative organs. And, the people's Court of judicial review in administrative license actions are related to the ability to effectively protect the legitimate rights and interests of the administrative relative person and other stakeholders.

(a) on the examination of facts and Law Review

According to the "administrative procedure law" article4Article: "the people's courts shall, based on the facts, the law as the criterion". This article determines the people's courts shall be trial of fact and law. Therefore, the people's court administrative litigation cases, both to the review found that the specific administrative acts being sued the facts are correct, also applicable review of specific administrative acts being sued the law whether accurate. Moreover, trial of fact and law review should be unified. According to the "Regulations" the implementation of the administrative license law, procedure in the administrative licensing, the administrative licensing authorities should implement the administrative licensing according to the statutory authority, scope, conditions and procedures. The implementation of administrative licensing authority for fact finding should conform to the legal requirement, in some administrative licensing, such as planning permission, may involve a number of technical standards and technical specifications, as the licensing authorities should carefully review these application projects in compliance with the technical standards and technical specifications.^[10]In addition, as the implementation of administrative licensing authority should also be no mistakes in the application of the law. In other words, the people's court administrative litigation cases, to review the implementation of administrative licensing authority determines that the facts are correct, but also review the applicable law is accurate, and not just to review the administrative licensing authorities applicable law is correct. Even as a highly technical cases of administrative license, the people's court in the trial, should not only legal trial, but not at the same time trial of fact. Although from the administrative law, the people's court should respect the administrative authority for truth in a certain extent, but this does not mean that the people's court shall unprincipled indulgence of exercising administrative power.^[11]Therefore, whether the trial of fact, or legal trial is very necessary.

(two) on the formal and substantive examination questions

For the administrative licensing subject should shoulder the duties of examination, is defined as the form of review, or expanded to the substantive examination, which often become the focus of dispute case. In view of the characteristics of administrative license beneficial and administrative actions focus on efficiency, I should not think that the administrative licensing subject to strict degree of responsibility, so to permit administrative duties should be in the form of review principle. But between the rights of the individual interests and public interests of society should make equilibrium selection, for the right people's personal interests must not be deprived of, because of this, I think there should be a substantive review exception. "Administrative licensing law" article34Also made a provision: "the administrative organ shall examine the materials submitted by the applicant. The materials submitted by the applicant are complete, consistent with the statutory form, the administrative organ to make a spot decision, shall make a decision of administrative licensing in writing on the spot. According to the statutory conditions and procedures, to the substantial contents of the application materials and verification, the administrative organ shall assign two or more functionaries for verification." But at present clear substantive examination of "the statutory conditions and procedures" legal documents is very rare. I think, if the law must provide proof of ownership relative person when filing the application, due to significant interest related persons, the administrative organ shall assume the substantive examination responsibilities. As the Land Bureau in the approval for building applications, according to the relevant regulations, applicants must provide the land management authority proof material.^[12]Equity as a major property rights of people, ought to get the maximum protection, only the ownership certificate materials were "substantive examination" can achieve this goal.

(three) a review of rationality and legitimacy review questions

 Discretion in the administrative licensing a considerable part of the administrative body in certain procedures, and review of the principles of administrative litigation is to review the legality of discretion, so often become the main evade responsibility excuse. In this case, the "administrative procedure law" in the "breach of privilege" in terms of rationality examination is very necessary, mainly reflected in the change of the act of administrative license review.^[13]"Administrative licensing law" article8Article1Clearly stipulated in paragraph, under normal circumstances, "the administrative license obtained citizens, legal persons or other organizations shall be protected by law, the administrative organs shall not change an effective administrative license." Article2Section of the preceding paragraph, only in the "laws and regulations of administrative license on the basis of being modified or abolished, or the objective circumstances which an administrative license according to the changed", the administrative organ for the needs of public interests, can "change or withdraw the effective administrative license in accordance with the law." Therefore, the court should review change the permission state behavior has no legal reason, if that change behavior without legal reason, a purely administrative arbitrariness arbitrariness, promise and then deny in succession, can "breach of privilege" by the decision to withdraw, this is actually a kind of rationality examination.

Of course, the degree of judicial review here mentioned refers to the judicial supervision of administrative legitimacy of power range. As for the specific administrative act should be how to exercise, is not in the judicial referee directly determine the scope, otherwise it will have jurisdiction to replace administrative power too. It should be paid attention to in the judicial practice.

 

Reference.

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[3]Xiao Guangkun: "on administrative licensing lawsuit", "law"2005No.3Period;[4]Jiang Minan: "the administrative law and administrative procedure law", Peking University press1999Year edition;

[5]Weng Yuesheng: "administrative law", Chinese Legal Publishing House2002Year edition;

[6]Liu Zheng: "on the set of plaintiff qualification in administrative litigation" and interactive relationship between the scope of accepting cases, China Legal Publishing House2000Year edition;

[7]Yang Linping: "the administrative license qualified parties", the people of Justice2004Year edition;

[8]Weng Yuesheng: "administrative law", Chinese Legal Publishing House2002Year edition;

[9]Xue Gangling: "standard" case study of administrative litigation, Oriental Press2002Year edition;

[10]Lin Minhua: "problems" on the trial of administrative licensing procedure, the people's court, the difficulty of "hot"2001No.7Period;

[11]Cheng Hu: "on administrative licensing procedure", "Legal Daily"2004No.23Period;

[12]Zhang Buhong: "range" on administrative licensing "," administrative law research1997No.4Period;

[13]Zhang Buhong: "report" frontier China administrative law issues, China procuratorial press2003Year edition;