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Executive summary: the myth of the public character of administrative conduct in japan and the fiction of non-traditional administrative law is a fundamental one with a rich content. Public force means the effect of a valid presumption upon the making of an administrative act, except that it is null and void from the outset. The inevitability of administrative defects, the objective necessity of administrative disputes and the non-consensual nature of dispute resolution form the social basis for the existence of public authority for administrative conduct; the need for order among members of society is the rationale for the existence of public authority. As a matter of erga omnes legal effect, the public power of administrative conduct has different requirements for different objects。
Keywords: administrative conduct/publicity/legitimate dissertation
In the area of private law, which is a great admirer of autonomy, when the expression of meaning is disputed between the subjects of the legal relationship, it must be submitted to the competent organ for determination by decision. Until then, the parties were not obliged to recognize and comply with that expression of intent. If one of the parties tries to impose its intention, the other party may use its right of self-defence to prevent unlawful infringement to effectively defend its legitimate interests. However, could this picture of the rule of law be equally present in the field of administrative law relations? In other words, can the administrative counterparty refuse to recognize and obey an administrative act before it changes the authority? Further, could the administrative counterparty express its inner disaffection by acting directly against the administrative acts of the administrative subjects before the formal initiation of relief proceedings? Papers
Ii. Concluding the context of administrative acts
First, the premise of public power. There are two basic conditions that must be met at the same time: the positive condition, i. E., the fact that the administrative act has been done and has become objective. In other words, an administrative act cannot be identified for outsiders, much less public. Second is the negative condition that an administrative act is not null and void from the outset. Although an invalid administrative act has been established, it has no legal force at all, no one is subject to it at any time and the administrative counterpart has a direct right of resistance to it. Thus, the nullity of the administrative act is absolutely unmodified. Thesis
Second, the substance of public power. Publicity conveys the idea that administrative acts, whether lawful or not, can be presumed to be valid and binding on the outside world. As a pre-existing effect, the public power is not expressly provided for by law, but it is always implicit in the actual legal provisions and conceptually supports many realistic institutional arrangements. As long as administrative defects and administrative disputes persist, there is a need for public authority to continue. The presumption of validity inherent in a public capacity does not in any way imply that the administrative act has ipso facto acquired material force, but merely suggests that it is provisionally assumed to be valid. Whether or not the act is ultimately materially effective should also be subject to the existence of all the elements required by law. Publicity, therefore, has only temporary effects, reflecting the procedural continuity of the validity of administrative acts, which is no wonder what japanese scholars call “the concept of procedural validity of administrative acts”. (p178)
Third, the subject to which public force applies. By drawing on the principles of civil law law on civil rights and the division of human rights, the public power of administrative conduct is a “worldly” effect, i. E. It can be applied to all state organs, social organizations or individual citizens. In particular, it covers both the administrative counterpart and other interested persons against whom an administrative act is directed, as well as other social organizations and individual citizens who have no interest in the act; it covers both the former administrative body which formulated the administrative act, as well as other administrative bodies and courts of equivalent or superior and lower rank. Thus, the application of public authority is extremely broad and fully reflects society's understanding of and respect for the conduct of state power. Thesis
As a pre-established legal effect, the public power does not depend on the subjective preferences of the people; rather, its existence has a broad social basis. In particular, public force is logically premised on the existence of three objective facts:
Secondly, the objective necessity of administrative disputes. Research in legal sociology shows that there are social disputes, which occur between specific subjects under certain social conditions. In the field of administrative law relations in particular, the dispute between an administrative relative and an administrative subject is the most typical administrative dispute. The administrative dispute arises out of an administrative act of the subject of the administration, and the actions of the parties to the dispute are always based on that act. The reason for this is that the administrative act, which is the link between the executive body and the administrative counterpart, is a form of externalization of the executive power, and that the executive power, particularly its discretionary powers, is very much a “two-sided blade”: it is possible to safeguard the private interests of citizens and promote the public good, while at the same time having negative effects on the private interest and endanger the public good. For both parties to the administrative legal relationship, their respective interests are often at odds, which is particularly evident in administrative acts of burden. According to economic analysis jurisprudence, administrative subjects, like individuals, are rational “economists” who interpret and judge administrative acts in their own interest, out of the potential to maximize their own interests. The objective existence of administrative defects further increases the probability of administrative disputes. In a modern society governed by the rule of law, it is neither ethical nor possible to hope that any administrative act carried out by a relative of the executive will be tolerated and accepted as such. The struggle for rights is a struggle for justice, and rights have always been realized through the struggle for rights. Indeed, as the scholars have said, “those who possess the dominant personality of the modern generation, not only realize that claiming their rights in order to combat violations is a legitimate and well-deserved act, but also feel that it is only the right to claim and fight for rights that is the social obligation of the person charged with the maintenance of this order. It is therefore unbearable for them to acquiesce in, or ignore, violations of rights and even to be perceived as a failure to fulfil social obligations.” in addition, modern and robust administrative litigation mechanisms provide sufficient institutional space for eventual resolution of administrative disputes. Thus, when an administrative act is formulated, the administrative counterparty tends to express his or her objections to the act by some kind of positive or negative means, thus triggering a real administrative dispute. Since there had been a dispute between the parties as to the validity of the administrative act, the question then arose as to whether the act remained valid until the dispute had finally been resolved, i. E. Whether the administrative act at issue was public. By definition, the existence of public power is also closely linked to the objective necessity of administrative disputes. Papers
With regard to the theoretical basis for the existence of public authority for administrative conduct, studies have been carried out by national and international scholars, which have resulted in the following eight representative doctrines:
One should read “self-identify”. According to otto meyer, father of german administrative law, the contested administrative act had legal force because the administrative agent who formulated the act was satisfied, at the time of its formulation, that the act was in conformity with the law; the administrative agent had administrative powers conferred by the state, and thus the administrative subject had the same powers as the court was satisfied that its decision was lawful and that its intention was expressed as lawful. (p178) papers
The second is “state authority”. This is held by the german scholar fosterhoff, who believes that administrative sanctions, whether lawful or flawed, are in any case an expression of the authority of the state and demand that such authority be respected. Thus, those who rely on the effectiveness of administrative sanctions are worthy of legal protection. Japanese scholars such as u. S. Mi-h. Daji, ujiro tanaka and ujijiki tanaka have inherited these two theories from german scholars. (p48) papers
Three for "faan speaking." in the opinion of sugimura, a japanese scholar, “if the propriety of administrative action is in question, the competent administrative organ or court may be ready to revoke it, but if anyone can deny the restraint of administrative action, the administrative penalty will not be effective, and the application of administrative sanctions to achieve the public good will be significantly delayed, and relations in administrative law will end up in disarray. For this reason, as noted above, even if the administrative sanction is flawed, there is a need to recognize its binding force, i. E. It must be recognized as being public. In this sense, the legal stability of administrative law relations can be said to be a reasonable basis for the public power of administrative sanctions
It should read “substantive law recognition”. Most of our taiwanese scholars argue that, as chen su-mi argues, “the existence of public power to impose administrative sanctions depends on whether substantive law recognizes the power of the executive to impose obligations on the people while at the same time empowering itself to enforce them in order to ensure that the content of the obligation is fulfilled”. (p132) paper
Eight for “legal presumption”. This is held by our scholar, mr. Liu dongyang, who believes that presumption is a technical rule of law. When the legality, validity or invalidity of an administrative act is not known, the values and interests before us are, on the one hand, the protection of the rights of citizens, on the other hand, the promotion of the timely achievement of administrative objectives, the preservation of the stability of legal relations, the protection of the trust of the opposite person and the public at large, and, on a legislative balance and consideration, can only be assumed to be legitimate and valid once the administrative act has been performed. (p494) papers
Second, the “definite recognition” and “legal presumption” express only the formal basis of public force, and the underlying question of why the law is recognized or presumed has not yet been addressed, making it difficult for them to correctly interpret the legal basis of public force doctrine. With regard to the public power to interpret administrative acts in the light of the principle of continuity of public service, we believe that there are two further doubts: first, that this specific principle in french administrative law applies only to public service, i. E. The provision of services, which refers specifically to “the activities performed by the subject of the administration in order to directly meet the needs of the public interest, as well as those carried out by private persons under the control of the subject of the administration in order to satisfy the needs of the public interest for the purposes set forth by the subject”. (p480) while service administration is only one type of modern administration, it is not clear whether these principles cover other types of administrative activity. Second, the non-disruptionability of public service is ultimately determined by the public interest embodied in it, and the theoretical basis for treating it as public force does not yet have the level and depth it deserves. Papers
Finally, there is a need for an analysis of “social trust statements”. To be objective, this argument is per se insightful. The reason for this is that, from the conceptual standpoint of people's sovereignty, all state power is derived from the people, who should believe that they can protect their interests when they “transfer” their rights to the government. But there is no doubt about the specifics of the viewers: first, it is argued that once the qualifications of the administrative subjects have been acquired, their status and meaning are more effective than the relative. This assertion has in fact reduced the basis of public authority to the mere acquisition of the administrative subject. It is clear that the acquisition of the subject's qualifications merely means that an organization has the possibility of having an administrative act, which is not directly related to the acquisition of public power. Second, when administrative acts are completely contrary to the public good and thus lose the ethical basis of their existence, it is emphasized that their effectiveness derives from the trust of society as a whole, which is undoubtedly “decorative” and which makes it easier for governments to exercise their power at will. Thirdly, it is clearly one-sided to ask members of an individual society to maintain confidence in, and blindly obey, an act of unlawful administrative action when their interests have been actually violated. It is assumed that the majority of members of society will become “mute” and “slave” subordinate to power, which is inconsistent with the demands of a society based on the rule of law for a sense of civil independence and rights. Heidel says, “only by learning to say no to power, man can be free”. (p8) it follows that “social trust statements” are difficult to provide a convincing explanation of the theoretical basis of public power. Thesis
(ii) “order needs” — new interpretation of the rationale for the public force theory. Papers
(i) administrative counterparty requirements。
(ii) at the original request of an organ. Papers
Following an administrative act, the administrative subjects themselves shall respect and be bound by them. In general, in the case of former administrative subjects, the public authority requires them to refrain from making repeated decisions on the same matter, in particular by prohibiting new administrative acts that are less favourable to the counterparty than the original act. For example, where a relative has obtained a building permit licence, the administrative authorities subsequently do not issue a stoppage order on the grounds that the application for a building permit was unlawful, in the absence of any change in the facts or the law. Papers
(iii) requirements for other citizens and social organizations. Papers
In addition to the direct binding role of administrative entities and their counterparts, other social organizations and individual citizens must recognize and respect the objective existence of administrative acts. Here, the basic requirement of public power is that other organizations and individuals cannot act against themselves despite the existence of an administrative act. In april 2001, it was reported that the national publishing authority had issued a report of criticism and ordered the chinese university of geology press to stop publishing " boys and girls " with book numbers. However, the magazine campuss and families, hosted by the hunan provincial newspaper centre, ignored criticism and continued to provide for the illegal publication of boys and girls, which continued to be published as “legal”. With the approval of the national press and publications directorate, the hunan press and publications department subsequently suspended the magazine " school and family " for serious violations of the regulations governing periodicals. In that case, although the magazine campus and the family was not a relative to the punitive acts committed by the state publications department, it should still be respectful of the act. The publication of boys and girls has been discontinued for illegal reasons, and no one else can provide for its publication at will. Failure to do so would be a blatant challenge to the integrity of the former penalty, and the perpetrators would pay for it. This is evidenced by the suspension of the magazine school and family. Thus, even other organizations or individuals unrelated to the administrative act cannot ignore the existence of the administrative act。
(iv) requirements for other administrative authorities. Papers
(v) requirements for the judiciary. Thesis
Secondly, in administrative reparation proceedings, since the plaintiff may make a claim directly and separately, the court only reviews the legality of the administrative act and issues a judgement of compensation if it is established that it has broken the law and meets other requirements for compensation. This situation is therefore not relevant to the theory of public force for administrative acts. Papers
Thirdly, in civil proceedings, does the court base its own decisions when the administrative act constitutes a preliminary issue in the resolution of civil disputes? Should civil disputes, for example, necessarily be premised on prior resolution of administrative proceedings? There are differences of scientific understanding of this issue. In my country, for example, a few years ago, the academic community discussed the above-mentioned issues in relation to the case of taka yongsun v. The city film and materials company housing dispute, which resulted in two opposing views. In japanese administrative jurisprudence, it is generally held that when the validity of an administrative act is in civil and party proceedings that constitute a preliminary issue, the court may not render a decision that contradicts the validity of the administrative act. At the same time, it has been held that “the scope of public power is limited by the purpose and nature of each administrative sanction to the extent that it is recognized as reasonable and necessary” (p95-96). According to the author, on the basis of the separation of the judicial powers of the executive branch, unless the administrative act is null and void from the outset, the courts must, when dealing with civil disputes in which the administrative act is a priori, consciously recognize the objective existence of the act and give it the necessary respect and must not follow from a judgement denying its impartiality. Thesis
Fourthly, in criminal proceedings, should courts also recognize the public authority of administrative acts when their validity constitutes a preliminary issue? In other words, does the court have the power to determine directly the validity of an administrative act and to base its final decision on that result when specifically establishing an offence against public service? In japanese administrative jurisprudence, pre-world war ii scholars have largely held that, in criminal cases, when an administrative act becomes an element of the crime, the criminal court is also bound by its public authority to base its judgement in the present case, provided that the act is not null and void. Today, the dominant view is that the issue is not related to the public force of administrative conduct, but rather that it is “the interpretation of the constituent elements of a crime in a specific criminal case from the standpoint of criminal law”. (p95) in german jurisprudence on administrative law, there are three points of view on this issue: “full affirmation”, “comprehensive denial” and “compromise”, among which “comprehensive denial” is shared by the majority of scholars. (p588-589) the authors consider that, in the spirit of the principles of criminal legality, due process of law and the guarantee of fundamental human rights, the courts are free to review them in criminal proceedings as a force of public authority for the form of administrative action. It is simple to say that only when an administrative act meets the requirements established by law is it worthy of protection by the courts by means of a penalty. Otherwise, the fundamental rights of a relative who is the defendant in criminal proceedings cannot be guaranteed a minimum. Thus, the unlimited expansion of the public domain in which administrative conduct is applied must also lead to the emergence of arbitrariness and power. It is a matter of concern that article 277, paragraph 1, of the criminal code clearly states that: “any person who obstructs by force or threat the staff of a state organ in the performance of their duties in accordance with the law shall be punished by imprisonment, detention, control or a fine of up to three years.” this provision also imposes the necessary limitations on the binding role of the courts at the level of positive law with regard to the public authority of administrative acts. Thus, in the field of criminal proceedings, the public authority of administrative action does not have a role for the courts, both in theory and practice. Papers
Note: graduate dissertation
For more details on this case, see wang guanghui, one case, eight judgments - intersection and coordination of civil proceedings in administrative litigation in one case, law no. 2, 1998. On the question of the public power of the act of administrative decision that arose in this case, some scholars were of the opinion that, following an administrative decision, the parties could not refuse to initiate only an administrative action and that the court could not disregard the act by passing a civil judgement. Cf. Jubilee: administrative civil proceedings in the case of cooven, 14 february 1998. Others have taken the negative view that the parties to a civil dispute against an administrative decision have initiated a purely civil action and that the court is not bound by the public discretion of the administrative decision. See gwynsson, " between administrative and civil proceedings " , editor-in-chief, j. R., administrative law series (vol. 2), 1999 edition, p. 428 ff. Papers
