Summary: once an administrative act has been established, it is entirely possible to have different degrees of defects in the subject or content, authority, form and procedure, and the recognition of the public power of the defect, irrespective of its size and weight, is bound to prejudice the legitimate interests of the relative. This paper focuses on the rationale for the existence of public authority for administrative acts。
Keywords: administrative conduct, public force, theoretical basis
With the growing interest in the effectiveness of administrative acts, scholars have recapitulated the content of the effects of administrative acts, resulting in a variety of views, in turn, on “five effects”, “four effects”, “new four effects”, and “two effects”. Among them, the four-effect words, which are built at the heart of the rule of law, are beginning to prevail and are gradually becoming the dominant doctrine of today。
Publicity of administrative conduct
The public authority of an administrative act means that it is legally public, i. E., when it is established, it accepts in principle a legal and valid presumption, except in cases where its establishment is considered to be absolutely null and void, and it must be respected and obeyed as a lawful and valid act by a relative of an administrative act, whether of a third person or of a state organ, before it is revoked, annulled or altered by a subject of the executive or by a court of law, and cannot be denied validity on one or more grounds。
This public power of administrative conduct is determined by the essence and mission of the administrative act, which thus acquires its own unique “frontier” from the civil legal act. It is true that there is some justification for recognizing the public authority of administrative acts from the point of view of the early attainment of administrative objectives and the early establishment of administrative legal relations. However, no matter how serious the illegality of the administrative act, it would certainly be unreasonable for the administrative counterparty and others with a certain interest not to apply for an administrative review or to initiate an administrative action against the de facto effect of the administrative act. Thus, western scholars have advanced the theory of remedy that an administrative act is null and void when it is serious and manifest that it has no force of law. There is no obligation on the counterparty to comply with an invalid administrative act and the right to seek relief is not subject to statute of limitations。
Ii. Basic requirements of the doctrine of public force for administrative acts
Publicity of administrative conduct is not only one of the basic areas of administrative law, but is also a major proposition that is broadly linked to practice. As an opposable legal effect, public force has different requirements for different addressees. An in-depth analysis of the basic requirements of public capacity can help to develop its substantive content and thus gain broad social acceptance。
1. Requirements for administrative counterparts. Since administrative acts are always the link between the state and citizens, they should consciously accept their binding role when they become known to the administrative counterpart and other stakeholders who have a direct or indirect relationship to the administrative act. This is the pre-eminent principle of the doctrine of public power. In particular, public power requires administrative opponents to submit to administrative conduct without overlooking its existence。
2. In the event of a request by the original organ, the administrative organ itself shall respect and be bound by the administrative act. In the case of a ship, the public authority, in the case of the former administrative subject, requires it not to make 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, if the counterparty has obtained a building permit licence, the administrative authorities may not subsequently issue a stoppage order against the counterparty on the grounds that the application for a building permit is unlawful, if the facts and the law have changed。
3. Requirements for other citizens and social organizations. 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。
4. Requirements for other administrative bodies. Other administrative bodies shall be subject to different degrees of restraint when they have taken administrative action. Specifically, other administrative bodies at the lower level of the former administration are obliged to follow up on the administrative acts performed by the former as a well-established fact and to use them as a basis for their own handling of a matter in accordance with the law. This means that “faith and trust” is the basic responsibility of the executive branch vis-à-vis other executive bodies. This requirement of publicity of administrative conduct stems from the maintenance of established horizontal lines of competence among the state administration。
5. Requirements for the judiciary. Can the public power of administrative conduct also apply to the courts? In other words, when the validity of an administrative act constitutes a preliminary issue in the resolution of other disputes, does the court necessarily have to base its decision on the existence of the administrative act? Issues such as these are extremely complex and involve not only the application of the principles of separation of powers, checks and balances, but also differences depending on the type of dispute。
Iii. Convergence of public capacity for administrative action
If our administrative law is to address the balance between guaranteeing administrative efficiency and respect for the rule of law and the principles of justice, it must address the relationship between equity and the fulfilment of the function of upholding justice. The term “limited public authority” is the current trend in administrative law. This theory holds that there are exceptions to the public power of administrative acts, which should be distinguished from the revocability of administrative acts, which are not opposable and which are revocable. An administrative act of public force must be an established administrative act, i. E. An element of subject matter, an element of unilateral expression and an element of communication. The absence of any of these elements can be regarded as an administrative act that does not exist. There was a distinction between nullity and invalidity, and an act considered non-existent was called nullity once it had an impact on the interests of the opposite person. If an administrative act is not established, it is established that the constituent elements are present. Taking into account the experience of abroad and in accordance with our national circumstances, the following administrative acts may be deemed null and void: (1) an administrative act committed by an administrative entity outside its authority. These include the ultra vires of office, the subject matter of subject matter and the ex vires of space; (2) the meaning of administrative subjects indicating an administrative act that is not genuine because of external factors; and (3) the breach of a statutory procedure established to protect the legitimate rights and interests of a relative, which is null and void. (4) where an administrative act cannot be established but constitutes an injury to the interests of a relative, the act is null and void; (5) the content of the administrative act is devoid of legal basis, unfounded or impossible to achieve or will result in the breach of the law by the relative; (6) the administrative act is null and void without prejudice to the public interest if its defects cause a great waste of resources or cause substantial harm to the counterparty. The annulment of sentences provided for in the administrative procedure code in force in our country can only be applied to administrative acts of specific force, which, although contrary to the law, have already taken effect, and to binding agreements which do not themselves have the force of law, where the courts have no object of revoking them, to invalid administrative acts or to acts which cannot be established by law. Publicity of administrative conduct is inherent in the establishment of the executive branch, but the necessary restrictions on it are a necessary requirement of modern legal democracy. The relatively late but high starting point for the establishment of the administrative rule of law in the country, with its considerable experience, has allowed the building of administrative law to proceed further on the basis of administrative doctrine。
