He Haibo "administrative procedure law" preface

Author's Preface

   Chinese does not lack of legal textbooks, missing is the personality of the textbook.
   Many years ago, when I read the British scholar Wade's "administrative law", I was enchanted by its clear, accurate and with a passion for writing. I vow, he later also wrote a textbook, a book can be used as the desk book and scholars reference materials.
   Wade's "administrative law" published, peer comments, his writings demonstrate convincingly Britain there is a system of administrative law. For Chinese, administrative law as an independent legal department had a consensus, to prove: the administrative Chinese has already formed a general system of rules can be expected. Such a rule system not only needs to be proved from "administrative procedure law" and other laws, also need to be proved from practice. Administrative litigation is administrative law practice in the most reasonable, most part of rational. This book on hand, can be said to be the administrative law from the perspective of administrative litigation of this window. This book is not much theory, mainly is a description of the legal construction of administrative law era Chinese picture. It shows Chinese administrative rule of law, the achievements, difficulties, which contains the hope.
   Structure of book does not use the "administrative procedure law" section system. The code section system in nature is a labor-saving way, but it may cover too much. In administrative proceedings, the most important problem than these: the court may hear the case (which the conditions for acceptance, the court) to judge the legitimacy of administrative behavior and what are the criteria (standards), the court can give what kind of party to help (relief), and the parties shall follow the steps (procedure). In the current "administrative procedure law", for the second, the three question answer is mainly a provision, article fifty-fourth; accordingly, in the administrative litigation law textbook in the mainstream, a judicial review standard and relief way most plug in a chapter a day below the title, a few pages he sent the. My book is divided into 5 parts, the above 4 issues each, plus general. I believe, this text structure problems can better respond to the administrative litigation, but also more concise in logic.
   And not only so, book on the compilation content description is trying to respond to the realistic problems, and strive to maintain the academic logic. For example, "accepted" this part is divided into three chapters, respectively, the scope of accepting cases, the plaintiff, the defendant and the court, reconsideration, litigation and repeated prosecution. The "scope" chapter, in addition to the introduction, respectively, the scope of administrative act, administrative act, administrative act form type. While "the scope of administrative act", and discusses the administrative organ outside the organization to exercise functions of a public behavior, social intermediary organization behavior, management of state-owned assets, mixing and civil servants, public security organs and other body different behavior. And so on structural arrangement is certainly not perfect, but contains the author's understanding of the Chinese administrative law issues and on the theoretical system of induction. "Administrative procedure law" may change, the system of administrative law concrete may modify, text structure that can continue without moving.
   Through this book, laws and case readers may be surprised by the book mimizaza. In such a setting China family in France, citing legal provisions It goes without saying that the textbooks, only because of the special nature of the administrative procedure law, legal provisions cited in "administrative procedure law", there are a large number of substantive law (including judicial interpretation and other normative documents). Although China not a case law countries, judicial precedent has no legal binding force (at best only for reference), but the case is still the best interpretation of the judicial practice. Even those controversial, inconclusive cases, all over the court judgment method, even not settle a matter by leaving it unsettled case, also can reveal the judicial practice information, and become a part of China administrative law vision. No extensive reading on administrative law case, sat in the den copiously quote authoritative works of scholars is unable to imagine the problems existing in the practice of every hue. But not a legal textbook case, it seems to me like a book without pictures of children's book, not cute.
   The reader may also note, this book describes the administrative litigation law adopted a viewer's perspective. That is to say, I was trying to tell the people, China administrative law is how, instead of "what should be"; the court on how to deal with a situation will be, rather than "should be how to deal with". The reason of judgment and conclusion questionable cases or, media coverage of the story is good, there are statistics on the condition of implementing the administrative litigation law analysis or, is the embodiment of this view. Although the book does not strictly implement this perspective, and also with some comments and suggestions, but it is my efforts to keep perspective, that is a feature of the book. I do it because I know: the reader is not a fool, from the judicial case or general practice will form their own judgments; the author is not wise, many thought reasonable suggestion is not reasonable, thought better of the idea can not become a reality. And the transition in a waves society period, to observe and record the process of the rule of law itself belongs to contemporary people's blessing. Here, I am more than happy to do a narrator, instead of calling party.
   However, an observer, the narrator is not without his own judgment. In the case of every hue, a case is typical of Chinese court or in extreme cases, generally understand the cases on behalf of the legal community what kind of, what kind of case that China law development direction, must be made by the author to make judgments and screening. Since it is impossible to get rid of their own judgment, I will declare your judgment. In actual practice, the author chooses as far as possible, the real authority and representative case. In some cases, the author simply states the court's attitude. But the author strongly against, that attitude in the book. In a world full of chaos, rule of law is uncertain, the pursuit of justice and the rule of law is vast in the morning star.

Two

   The writing of this book for two years, but the study of administrative law is just one of 20 years. This book is not only the study and research of administrative law is the product of many products, senior fellow and Professor excitation.
   In 1991, "administrative procedure law" has just been implemented, I was in Zhejiang politics and law college university. The school sent to the administrative litigation law professor Hu Jianmiao editor of "tutorial" (Hangzhou University Press, 1990 ) as the next semester textbooks. I spent two nights, read the book but also exudes ink. I read second of the administrative litigation law, administrative procedural law is Professor Jiang Mingan "(later renamed" reprint "administrative procedure law"). This is a must read for my study section, once known in the chest; it is also a personality of the textbook, the "administrative procedure law" the legislative process and the legislative background of narration in the book, has excited me. Administrative law and administrative litigation law professor Ye Bifeng "" (Higher Education Press 2007), made a bold exploration in the case of use, become the object of my reference. There are a few of the judicial practice style thick book edited by Professor Luo Haocai, such as "China judicial review system", Jiang Bixin and judge Liang Fengyun's "administrative procedure law theory and practice", Professor Yang Xiaojun's "administrative procedure law, empirical research", also let me benefit a lot.
   In university period, Yan Guang, Yu Shaoyuan, the teacher of my thinking of administrative law issues are encouraged. After entering university, has studied under Jiang Mingan, Luo Haocai, Professor Ying Songnian. They witnessed the "administrative procedure law" formulation and practice of long-term close attention in administrative litigation. They to the administrative litigation law of the insights and teach by precept and example, let my life. Ma Huaide, Liu Shen, Yang Xiaojun, Zhan, Zhang Jiansheng, Zhu Xinli, Zhu Wang and other scholars on some problems of administrative law insight, let me also inspired.
   In addition to their own who represented three, five administrative lawsuits, and legal practice of contact that benefited me. In the North during reading, just to catch up with a senior judge training administrative law classes, I attended the course, with Song Longling, Gao Ruomin, Li Ji, Yin Changping and other judges have had many conversations, very touched. During reading, there was a time in the supreme administrative court practice, benefit from the river Bixin, Cai Xiaoxue, Wen Gan judge guidance. The reader may feel that, book writing style more or less influenced by the judicial practice.
   In this book, brewing and writing process, I graduate student Zhang Jianjiang, Zhao Xiaobo, Li Yan, help me find a lot of information, many students of Tsinghua law school presents insightful comments or questions in class. Yu Lingyun, Shen Kui, Yang Weidong, Li Honglei, Zhang Jianwei, Liang Fengyun and a group of senior fellow reading my manuscript, and participated in the discussion of this book will, give me a lot of advice, but also gave me encouragement. Professor Zhang Jiansheng received the electronic version of the manuscript, send me back to his typescript, the annotations hundreds!
   Thank you, thank you!

Three

   Claims that "the shortcomings and mistakes can hardly be avoided", for such a think there is some innovative book, it is not polite. Besides not yet aware of the many shortcomings and mistakes, I write often plagued by several problems:
   Citing cases can provide intuitive understanding, emotional and more inspired, but lay a large number of cases may also be a hindrance to the readers grasp of context, even the case, do not see principle;
   Structure of the new in order to be different may make the book more in line with the theory, and the internal logic, but may also increase the reader understand the difficulties, do not know that is where;
   Provides a more vast background many administrative law norms of introduction to the administrative litigation law, but some are primarily concerned with judicial review of operation of the reader, may seem not to the point......
   These questions, read the manuscript senior fellow had pointed out to me, but because of the time and level, is difficult to make up for. Sincerely welcome readers to criticize the book, or for the book to provide supplementary materials. Opinions and materials should be hehaibo@tsinghua.edu.cn, or 100084 Tsinghua University law school He Haibo.
   Once considered a legal provision, in the book of judicial case, references and keyword indexing, but due to the length, forget it.

The night of 5 August 2011