The administrative litigation on administrative guidance

   Abstract:The possibility of the existence of the relative party infringes the lawful rights and interests of the administrative guidance, should be allowed to bring an administrative lawsuit. Administrative guidance infringement mainly because of the imperfect laws and regulations, administrative personnel quality is low and the conception, responsibility is not clear and the relief system defect. This procedure can be divided into action for annulment, affirming litigation and litigation of payment and other types of. The administrative relative party filed the lawsuit, the Constitution and relevant laws exist according to the. Shall formulate and revise relevant laws and perfect the relevant systems, the courts at all levels shall actively fulfill their judicial functions, effectively assume responsibility to protect the rights of citizens.

    Keywords: Administrative Guidance The right of relief in administrative proceedings

   With the continuous progress of China's democracy and the rule of law, the system of socialist market economy continues to develop and improve, the administrative organ to exercise the administrative power from the form of a single form of administration under the planned economy, has gradually developed into including the administrative management, including administrative services, administrative, administrative guidance, administrative reward and other forms. The manner in which the administrative guidance, the advantages of democracy, human nature, embody the flexible, efficient, easy to accept, gradually has been widely used in the administrative management of concrete. However, in our law of administrative guidance, there is no complete system regulation, has not formed the legal system. Principles of the administrative guidance, administrative authority, procedures, legal liability, the right to relief the specific system, there was no legal provisions. Once appear mistake, and a serious infringement of the illegal administrative guidance, administrative counterpart's right to get remedy. In particular the 1999 Supreme Court "on the implementation of 'of the people's Republic of China Administrative Procedure Law' interpretation of several issues" (hereinafter referred to as the judicial interpretation) first interpretation about the scope of accepting cases, will "do not have the Administrative Guidance Act" force out of the court case range, which in theory and in practice. Easy to cause the misunderstanding. Is the administrative guidance "unenforceable", was not allowed to sue? Or administrative guidance is divided into "force" and "administrative guidance, administrative guidance is not mandatory", and to "administrative guidance has force" can sue? In the practice of administrative guidance, the administrative organ infringes upon the lawful rights and interests of the relative party illegal is not uncommon, all the cases out of the court case scope, violates the law system of our country, also do not accord with the administrative procedure law. This paper discusses some problems of administrative litigation of administrative guidance, the hope can cause the attention from all walks of life.
    A possibility of infringement, administrative guidance

   (a) the administrative power with expansion
   In the government as a social role of "night watchman" free capitalist period, people pursue the "best government is the government with least management" concept, strictly abide by the principle of separation of three powers determine the administrative power, the administrative power is limited to the state administrative organs to enforce the law, management of national administrative affairs, national economy runs entirely on the market this "invisible hand" to control. Since twentieth Century, especially after the Second World War, the new revolution of science and technology production is more concentrated, contradictions between socialized production and private ownership of the more prominent, free competition and market regulation can not solve the social crisis of spontaneous. The western countries follow the Keynes doctrine to strengthen the state intervention in the economy and society and regulation. The executive power is an unprecedented expansion, the administrative organ is not only the executive organ of the will of the legislature, or only to defense, diplomacy, finance, security and other traditional functions. In the modern welfare state, administrative rights can be defined as the state administrative organs or other specific social public organizations of public administrative affairs management directly or active public service for the social member's power. [II] "all have the power of the people, are easy to abuse of power, this is an eternal and unchangeable experience. Powerful people use power until they meet the limit place stopped "[the], administrative power also has the spontaneous expansion. Originally, the power comes from the right, to create power in order to better safeguard the rights. In the power of creation at the beginning, people will use the law to regulate the power, in order to power in accordance with the will to exercise, to better protect their own interests. But the fact is that the power is not as people originally thought to have the operation, with the emergence and development of the administrative state power, the administrative power is more and more strong, relative to the rights of citizens is an absolute advantage.
   (two) the administrative guidance is a kind of administrative power operation
   A form of administrative guidance belongs to administrative power. [4] but also some scholars believe that the administrative organs in the process of the implementation of administrative guidance. The administrative power [⑤]. Administrative guidance is designed to achieve the aim of administration, administrative affairs management of administrative organs have on the country's obligations to the way. According to the principles of administrative law, the administrative organ for administrative guidance must be in their jurisdiction scope, can not go beyond the scope of authority. Although the administrative guidance unenforceable on relative, but this is only exercise the powers of different requirements, namely the administrative organ in such cases is not required to comply with all relative parties, want to guide the party retained but allows freedom of action, so do not take the national compulsory means. Administrative guidance and other administrative functions and powers, is the possibility of an administrative act, not an inevitable outcome. Executive so cannot deny the administrative instruction. Due to the spontaneous expansion of administrative power, administrative guidance authority also abuse is illegal, the possibility of using, which may infringe upon the lawful rights and interests of the relative party.
   (three) the main factors caused by the infringement of administrative guidance
   1 the administrative guidance of the laws and regulations are not perfect
   On the administrative guidance, the constitution, laws, administrative regulations and rules are involved, but the principle is the requirement or scattered provisions. Such as "constitution" the eighth provisions of the third paragraph: the state protects the lawful rights and interests of the urban and rural economic collectives, guidance and help, encourage the development of collective economy. Eleventh the provisions of the second paragraph: the State encourages the development, support and guide non-public economy, and the non-public sectors of the economy in accordance with the law, supervise and management. Here the "guidance", "guide", provides the possibility for the relevant administrative organ of the administrative guidance. "Agricultural law" of the people's Republic of China the thirteenth paragraph second: national guidance and support to engage in agricultural production, processing, circulation service enterprises, scientific research institutions and other organizations, through the establishment of various enterprises and peasants or farmers' specialized cooperative economic organization or the formation of contract, revenue sharing, risk sharing benefits of the community, promote agricultural industrialization, promoting the development of agriculture. How should the specific guidance, guidance in scope, guidance which should follow the procedures not clearly stipulated. This led to some administrative organs fall into such a predicament: the law to guide, but do not know how to guide or direct guidance to the administrative coercion. In the absence of specific procedures and no specific legal basis, administrative guidance can not guarantee that the relative person's procedure right, the administrative organ is also easy to escape the responsibility.
   2 individual personnel quality is low and the old ideas
   Modern administration is different from the past government administration, service administration and administration to pay more. The traditional "command -- to" model no longer meet the current requirements. The individual executive officer based thinking ingrained, the administrative opposite party as the object of management, said he only exercise of power without responsibility. In administrative guidance information is not comprehensive, the market is not clear, subjective and arbitrary not objective and comprehensive analysis, or deception, intimidation, threat, inducement, once by mistake or illegal administrative guidance caused damage to opposite party, will other voluntary grounds, and pass the buck. In the implementation of administrative guidance in the process, the quality of the traditional concept of the impact and officials of the low easily lead to the administrative guidance has been alienation.
   3 responsibilities are not clear
   Modern administration is the responsibility of administration, it is the requirement of administration by law. Administrative guidance, as does not have the force, and there is no specific legal basis, administrative organs for administrative guidance to various influence, often even coercive means, directly or indirectly, when caused by opposite party legitimate rights damage and excuse the administrative guidance no strong force to shirk the responsibility. Legal liability is not clear, also contributed to the infringement of administrative guidance.
   4 remedies
   At present, China's "administrative review law" is not clearly defined administrative instruction relief system, less practice has caused the administrative reconsideration rights of the relative damage relief case because of administrative guidance. "The scope of accepting cases in administrative procedure law" is not clearly defined because of administrative guidance infringement may bring an administrative lawsuit. Coupled with the "administrative procedure law" of the "judicial interpretation" about the scope of accepting cases to explain, "does not have the Administrative Guidance Act" force out of the court case range, on the rights of the relative relief and set up barriers.
    Two, the necessity to institute administrative proceedings

   On the basis of the principle of the rule of law, have the right to be a relief system security. In administrative guidance, the administrative organ may be improper or illegal exercise of powers, infringe upon citizens, legal persons and other organizations of the legitimate rights and interests. In the administration, the administrative organ to grasp the large amounts of information, resources, technical data, the formation of resource advantage; at the same time have given by the state policy, for creating, execution and other powers, the formation of dominant position. But the administrative relative party due to incomplete information, personnel scattered, weak, humble, and easy to ignore human and financial resources and other reasons, in the obvious disadvantage. Under normal circumstances, the administrative organs according to the correct information, follow the laws and policies of administrative guidance, not infringe upon the legal rights of the relative party phenomenon. However, if the administrative officials for instant success, administrative guidance in the grasp of the information is not comprehensive, marketing channel is not smooth, formulating and implementing policies in unstable conditions; or by administrative organs of the dominant position and pressure of administrative guidance; or to the machine off and personal interests, to coercion, administrative guidance law and so on, will infringe upon the legitimate rights of relative party. In practice, the administrative guidance is often the lack of legal basis of clear, the main basis under the jurisdiction of the administrative organ for administrative power, depending on the relative side of the administrative organ's trust and respect, the administrative organ to exercise great discretion. In this case, the administrative organ or the people's court blindly emphasizes administrative guidance "is not mandatory," to the citizens, legal persons and other organizations of the legitimate rights violations of stand, and let their own bear the administrative organ loss caused by improper or illegal behavior, serious defects and enforcement system of injustice. So, should permit the administrative opposite party to improper or illegal administrative guidance, causing damage to lodge an administrative reconsideration and the administrative litigation.
    On three, the types of cases

   (a) cancellation suit, action of confirmation and the payment claim
   According to the lawsuit can be divided for cancellation suit, action of confirmation and the payment claim. Administrative guidance action for annulment, refers to the Administrative Guidance Act made by an administrative organ on the plaintiff appealed, request the people's court to revoke the administrative guidance act. The withdraw of can serious illegality of administrative guidance. If there is only slight illegal without the other legal rights are damaged, do not generally lead to the occurrence of administrative litigation, under the current system is difficult to bring a lawsuit. Administrative guidance action of confirmation, refers to the administrative counterpart asking the court to confirm the administrative guidance act of an administrative organ or the relevant illegal act. Including asking the court to confirm the administrative instruction behavior per se, the administrative authority for the pursuit of administrative guidance results and take relevant action is illegal, or ask the court to confirm the administrative payment preferential commitment exists. Administrative guidance litigation of payment, is asking the court to order the defendant to perform the obligation of administrative guidance. The main advocate offering property or property interest payment.
   (two) illegal guidance action, alienation guidance suit and violation of trust protection action
   According to the form of the behavior of different, can be divided into illegal guidance action, alienation guidance suit and violation of trust protection action. (1) the illegal direct action, that is directed against the illegal acts of administrative guidance procedure. Illegal administrative guidance mainly has: authority to guide, abuse of administrative power and administrative guidance conduct illegal content. Ultra vires guidance, refers to the administrative main body guidance outside its jurisdiction. It is a violation of rights organization law and the principle of administration according to law. Abuse of administrative guidance, refers to the administrative main body to guide the implementation of the purpose of illegal gains, or by other improper purpose of guidance. Administrative guidance law, refers to the administrative guidance in violation of the provisions of laws and regulations. (2) the alienation of guiding action, refers to the confirmation of administrative acts of administrative coercion by the name of administrative guidance. Mainly the form of behavior of administrative organs in administrative guidance: form of administrative command; relative to the party does not accept the administrative guidance that will give adverse punishment; the opposite party is threatening to take revenge; after opposite party does not accept the guidance, etc.. (3) breach of trust protection action, is asking the court to confirm and protect the private party in administrative guidance by the administrative organs shall pay interest litigation. "Administrative licensing law" eighth stipulates: "citizens of administrative license, legal person or other organization has been protected by the law, the administrative license shall not alter the effective administrative license. Laws, regulations, rules and administrative license on the basis of the amended or abolished, or the objective conditions on which an administrative license is based have changed, to meet the needs of public interests, the administrative organ may modify or withdraw the effective administrative license according to law. The damages caused to the property of a citizen, legal person or other organization, the administrative organ shall give compensation in accordance with the law". The provisions in the law for the first time established the principle of protection of reliance. In administrative guidance, also requires administrative organs to honor their commitments. In administrative guidance, in violation of the principle of protection of reliance mainly displays in: the change of administrative guidance has led to accept guidance expected interests; administrative guidance as to accept guidance and make unfulfilled commitments etc..
   (three) the other classification
   On administrative guidance procedure, can also be classified by other criteria. As the basis of administrative guidance is caused by damage to the interests of the relative party, can be divided into some damage in litigation and no damage in the litigation; according to the relative people to accept the guidance when there is no free will, divided into administrative guidance in compulsory and no fact mandatory administrative guidance.
Four, the legal basis for the administrative litigation
The existing legal system does not exclude the citizens, legal persons and other organizations for the improper and illegal to bring an administrative lawsuit of administrative guidance.
   "The constitution" the forty-first provisions of the first paragraph of citizens of the people's Republic of China: for any state organ or functionary, have the right to criticize and make suggestions; for any state organ or functionary of illegal acts, complaints, charges or complaints rights to the relevant state organs, but shall not fabricate or distort the facts for false accusation. The provisions of the section third: the staff of state organs and civil rights violations by the loss of the people, have the right to compensation in accordance with the law. The above constitution, of course including citizens, legal persons and other organizations have the right to administrative guidance is improper and illegal to bring an administrative lawsuit.
   "Administrative procedure law" the second stipulation: the citizen, legal person or other organization believes that a specific administrative act administrative organ or its personnel infringe upon their lawful rights and interests, have the right to bring a lawsuit to the people's court in accordance with this law. The provisions in the first paragraph eighth eleventh: that the administrative organ infringe other personal rights, property rights. From the "administrative procedure law" of the scope of litigation and by case basis, both lists are general provisions, the administrative guidance is not excluded. Administrative guidance is difficult to be appear in practice, mainly is the judicial problems.
   "State Compensation Law" the second stipulation: state organs and functionaries of state organs exercising authority of citizens, legal persons and other organizations of the legitimate rights and interests of damage, the victim is in accordance with the law the right to state compensation. Rule ninth: the claimant claims for compensation shall first apply to the organ liable for compensation, can also be raised in the application for administrative reconsideration or bring an administrative lawsuit when. Rule thirteenth: the organ liable for compensation shall be applied for within two months from the date in accordance with the provisions of chapter fourth of the compensation received from; if not compensation or where the claimant is not satisfied with the amount of compensation, the claimant may bring a lawsuit in a people's court within three months from the date of expiration. Administrative guidance is the administrative organ to exercise the administrative authority behavior, illegal cause other damage, the compensation should be carried out on the basis of the national compensation law.
   "Agricultural technology promotion law of the people's Republic of China" nineteenth paragraph second: applicability to agricultural labourers to promotion not in the promotion of area through the test, has advanced the agricultural technology, causing losses to agricultural labourers, shall bear civil liability for compensation, the person in charge directly responsible and other directly responsible personnel can be given administrative sanctions by their work unit or the higher authorities. The civil liability of the provisions should be for administrative responsibility. The promotion of advanced agricultural technology, should be used as administrative guidance. Here stipulates the legal responsibility of administrative guidance specific to the law.
    Five, legal perfection

   The perfect administrative guidance on the administrative litigation system, mainly from the following aspects:
   (a) formulating laws
   1 making the "administrative procedure law" provisions, administrative guidance principle, procedure, rights, legal liability and other related rights administrative remedies and judicial remedies.
   2 making the comprehensive law on the non mandatory administrative acts, including the administrative guidance, administrative contract, Administrative Award, administrative help, flexible management administrative behavior principle, functions, procedures, legal liability, opposite party the rights relief system.
   (two) to amend the relevant laws
   The 1 amendment "administrative procedure law", clearly stipulates that the Administrative Guidance Act improper or illegal infringement of their legitimate rights and interests can bring an administrative lawsuit case type.
   The 2 amendment "administrative review law", clearly stipulates that the Administrative Guidance Act improper or illegal infringement of their legitimate rights and interests may apply for administrative reconsideration of the case type.
   The 3 amendment "State Compensation Law", the administrative guidance illegal infringement damage provisions for the scope of administrative compensation.
   4 the modification of other relevant laws and regulations, clearly defined functions, procedures, legal liability of administrative guidance, and provides ways for the administrative reconsideration and the administrative litigation.
   (three) the administrative organ and the court actively perform their duties
   1 the administrative reconsideration organ shall actively accept citizens, legal persons and other organizations think that the administrative guidance act of an administrative organ is improper and illegal infringement of their legitimate rights and interests of the case.
   The 2 highest court shall limit the regulations about administrative guidance of judicial interpretation to modify the "administrative procedure law" in, to make a positive interpretation of the scope of accepting cases, enlarge the scope of accepting cases.
   3 the courts at all levels should protect the rights of the relative position of the administration, actively accept for administrative litigation administrative guidance of infringement occurrence.

(author: Liu Jie, doctor of law, Beijing Dacheng Law Firm Shanghai branch lawyer, arbitrator of Shanghai Arbitration Commission)

Notes.

[1] see Tan Jian editor: "foreign government management system evaluation", 126th pages, Shanghai people's publishing house, 1987.

[II] see Yang Haikun, Zhang Zhiyuan: "Chinese research on fundamental theories of administrative law", seventeenth pages, Peking University press, 2004.

[3]. [method] Montesquieu: "the spirit of law", 121st pages, the Commercial Press, 1961.

[4] Yang Haikun, Zhang Zhiyuan in the "Research on the basic theory of administrative law" Chinese in one book, the administrative guidance right column as a administrative authority. See Yang Haikun, Zhang Zhiyuan: "China research on fundamental theories of administrative law", twenty-second pages, Peking University press, 2004.

[⑤] see Mo Yu Chuan: "administrative guidance outline", twenty-eighth, 30 pages, Chongqing University press, 1999