In life, we often deal with government departments: it may be to obtain a business licence, it may be to receive a transport ticket, or it may be to face a decision to collect a house. How can you judge whether an administrative act is lawful when you are disconvincing an administrative decision and feel “unfair” and “unjustified”
Today, we come to present three core elements that judge the legality of administrative acts. With these three, you have the “three feet” to measure compliance with government actions。
First ruler: who's in charge? — subject is legal
The core issue: are the units or individuals making this decision, and are they empowered to do so
Just as only school directors are authorized to take leave, every authority of the executive has a clear attribution。
Legal situation: public security organs punish violations under the public security administration punishments act; market regulators inspect businesses under the food safety act. These are clearly conferred by law。
One sentence should remember: “the law is not empowered to act” — the executive cannot exercise powers that are not expressly conferred by law。
Second ruler: right? - the content is legal
Core issue: is the decision itself based on facts, legal grounds and reasonable proportionality
This is at the heart of the judgement, as is the case before a judge, and must be “based on facts and governed by law”。
Four requirements must be met:
1. The facts are clear and well-documented: decisions cannot be based on speculation or hearsay. For example, if you're found to be in breach, you must have solid evidence of site surveys, mapping, etc。
2. Applicable law is correct: the legal provisions cited must be precise and in force. The old statute, which had been repealed, could not be used to regulate today's behaviour。
3. Legitimacy and discretion: the purpose of enforcement is in the public interest, not in the form of harassment or personal gain. The penalty shall be proportionate to the degree of fault and shall not be “smaller than heavy”。
4. Clear and achievable content: decisions should be clear and implementable. For example, corrective action should be taken to indicate what it is and what standards it meets。
Third ruler: is the program going right? - process is legal
Core issues: is the process of taking this decision in accordance with the prescribed steps, modalities and time frame
“justice must be achieved not only in a visible manner, but also in a manner that is visible.” the legality of proceedings is an important guarantee of substantive justice。
Key procedural rights: the executive must normally:
Notification: tell you the facts, reasons and grounds for the alleged violation。
Hearings: to give you the opportunity to explain and defend yourself。
Organization of hearings on major matters: you are sometimes entitled to request hearings on matters such as demolition of illegal buildings, large fines, etc。
Service of decision: a written decision is duly communicated to you and the avenues of redress (e. G. Review, proceedings)。
Three feet. One is not necessary
Subject legality is a prerequisite (who does it), content is the core (what to do) and procedure is a guarantee (how to do it). The three are linked together and together constitute a complete framework for the legality of administrative acts。
The code of administrative procedure clearly states that a people's court may quash an administrative act as long as it is based on one of the principal cases of insufficient evidence, error in the application of the law, violation of due process, excess of authority, abuse of authority, manifest misconduct, etc. These six criteria for judicial review are precisely the specificity of the above-mentioned “three elements”。
