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Assignment代写范文|行政诉讼

来源:网络整理    作者:留学生活网    发布时间:2019-07-24 15:18    阅读: 次    文章分类:范文参考

文章关键词:Assignment代写范文


文章导读:本文是一篇Assignment代写范文,这篇论文讨论了行政诉讼。行政诉讼中“以合法性审查为原则,合理性审查为例外”,对“法”的理解采用了形式法治的观点...

  本文是一篇Assignment代写范文,这篇论文讨论了行政诉讼。行政诉讼中“以合法性审查为原则,合理性审查为例外”,对“法”的理解采用了形式法治的观点,而“合法性审查包含对严重不合理行为的审查”和“合法性审查不排除合理性审查”,则对“法”的理解采用了实质法治的观点。几乎没有人认为,在行政裁量权限内,法院就不能干预。在行政诉讼中确立对行政裁量行为的合理性审查是必要的。

Assignment代写范文|行政诉讼

  In 1989, the administrative procedure law of China mainly adopted the provisions of article 54 to examine the rationality of administrative ACTS, that is, for administrative ACTS of "abuse of power", the court can revoke the judgment. If the "administrative punishment is obviously unfair", the court may make a change of judgment. Look from the law, seems to have solved the problem of rationality review of administrative behavior, however, because of the theory and practice to the understanding of the law there are serious differences, rationality and legitimacy review in administrative litigation and review positioning, the judge is rarely used "abuse of power" standard to determine administrative organs abuse of discretion, lead to "abuse" standard has not fully develop the function of the control of administrative discretion. Article 70 of the administrative procedure law amended in 2014, while retaining the standard of "abuse of power", added the standard of "obvious misconduct", and stipulated that the court could revoke the judgment of "abuse of power" and "obvious misconduct". If the "administrative punishment is obviously improper", the judgment may be changed.
       1989年,我国《行政诉讼法》主要通过第五十四条的规定来审查行政行为的合理性,即对于“滥用职权”的行政行为,法院可以撤销判决。行政处罚显失公平的,可以变更判决。从法律上看,似乎已经解决了行政行为合理性审查的问题,但是,由于理论和实践对法律的认识存在着严重的差异,理性和合法性审查在行政诉讼和审查定位上存在着严重的差异,对行政行为进行了理性审查。法官很少用“滥用职权”标准来确定行政机关滥用自由裁量权的行为,导致“滥用职权”标准尚未充分发挥对行政自由裁量权的控制作用。2014年修订的《行政诉讼法》第70条在保留“滥用职权”标准的同时,增加了“明显不当行为”的标准,规定法院可以撤销“滥用职权”和“明显不当行为”的判决。行政处罚明显不当的,可以改变判决。

  When "obviously improper" is added to the standard of canceling the judgment, "abuse of power" refers to the improper exercise of the power by an administrative organ within the scope of its authority, which violates the purpose of granting such power by law and has a serious subjective fault. While "obvious misconduct" does not consider whether there is a subjective fault when an administrative organ makes administrative discretion, but includes administrative discretion that violates the purpose or spirit of legislation, general legal principles, general concepts of fairness and justice or common sense made due to cognitive bias, objective conditions, negligence or error. "Apparent misconduct" and "abuse of power" are both criteria for courts to examine whether administrative discretion is justified, but there are differences. First, the specification Angle is different. The "abuse of power" standard is mainly applied to the examination of administrative organs and their staff who have the subjective intentional violation of administrative discretion, while the "obvious misconduct" standard is mainly applied to the examination of the non-subjective malicious violation of administrative discretion. Second, the degree of illegality is different. "Abuse of power" is to a very unreasonable extent, so that the decision of the administrative organ has no reasonable basis, and "is a kind of original illegal form that covers the illegal purpose and spirit of law in essence. "Obviously inappropriate" is relatively mild, "it is premised on legality and improper within the scope of legality".
       在撤销判决的标准中增加“明显不当”的,滥用职权是指行政机关在其职权范围内不正当行使权力,违反法定赋予权力的目的,有重大主观过错。“明显不当行为”不考虑行政机关作出行政自由裁量权是否存在主观过错,但包括违反立法宗旨或精神的行政自由裁量权、一般法律原则、一般公平概念和公正原则。或由于认知偏差、客观条件、疏忽或错误而产生的常识。”“明显的不当行为”和“滥用权力”都是法院审查行政自由裁量权是否合理的标准,但也存在差异。首先,规格角度不同。“滥用职权”标准主要适用于对主观故意违反行政自由裁量权的行政机关及其工作人员的考核,而“明显不当行为”标准主要适用于对非主观恶意违规行为的考核。行政自由裁量权。第二,违法程度不同。”“滥用职权”是一种非常不合理的行为,致使行政机关的决定没有合理的依据,“是一种原始的违法形式,实质上涵盖了违法目的和法律精神”。明显不适当的“是相对温和的”,是以合法性为前提,在合法性范围内是不适当的。

  In China's administrative litigation, in addition to the examination of the legality of administrative ACTS, whether to carry out the examination of rationality, and the relationship between the examination of legality and the examination of rationality, has been constantly debated in the theoretical research. Some scholars put forward that the people's court takes the legality examination as the principle and the rationality examination as the exception. If the act of an administrative organ constitutes an abuse of discretionary power or an unfair administrative penalty, the court may make a judgment to revoke or modify it. Some scholars think that the court generally does not consider whether the legal administrative act is reasonable or not. Unless the unreasonable administrative act reaches a level that cannot be tolerated by the legality and exceeds the limit of legality, the court may revoke or change it by abusing its power or showing unfairness. Therefore, the legitimacy review actually includes the serious unreasonable review. Some scholars point out that legitimacy examination itself does not exclude legitimacy examination, nor should it exclude legitimacy examination principle. Because the principle of administrative rationality is the extension and development of the principle of legality in the field of discretionary power, the principle of administrative rationality is subordinate to the principle of administrative legality, so the behavior violating the principle of rationality is essentially an illegal act.
       在我国行政诉讼中,除了对行政行为合法性的审查外,是否进行合理性审查,以及合法性审查与合理性审查之间的关系,一直是理论界争论不休的问题。艾尔研究。一些学者提出,人民法院以合法性审查为原则,以合理性审查为例外。行政机关的行为构成滥用职权或者行政处罚不公平的,法院可以判决撤销或者变更。一些学者认为,法院一般不考虑法律行政行为是否合理。不合理的行政行为,除达到法定不能容忍、超过法定限度的水平外,法院可以滥用职权、不公正予以撤销或者变更。因此,合法性审查实际上包括严重的不合理审查。一些学者指出,合法性审查本身并不排除合法性审查,也不应排除合法性审查原则。由于行政合理性原则是自由裁量权领域合法性原则的延伸和发展,行政合理性原则从属于行政合法性原则,因此违反行政合理性原则的行为属于行政合法性原则。孤立无援本质上是一种违法行为。

  Think the "administrative litigation to the principle of legality review rationality review for exception", the understanding of "law" has adopted forms the rule of law, and "the legal review includes review of serious unreasonable action" and "legitimacy examination does not exclude the rationality examination", is the understanding of "law" has adopted the essence of the rule of law. Nevertheless, few scholars of either view believe that the courts cannot intervene within the scope of administrative discretion. It is necessary to examine the rationality of administrative discretion in administrative litigation.

  First of all, the reasonableness examination in administrative litigation is a necessary method to control administrative discretion. The review of administrative rationality mainly focuses on administrative discretion. Administrative discretion is a kind of administrative act, which comes from the authorization of law. The law expects to make the decision of optimal legal effect through the full consideration of the administrative organ in the case. When the law endow the administrative organ with the discretion, it actually requires the administrative organ to make "the discretion according to obligations", so the administrative discretion should be bound by the law and general legal principles.

  With the deepening of the concept of administration by law, China begins to attach importance to the control of administrative discretion. In 2004, the state council's outline for comprehensively promoting administration according to law requires that "the exercise of discretionary power should conform to the legal purpose and eliminate the interference of irrelevant factors." after 2008, Chinese academic and practical circles generally believe that it is an effective method to regulate the exercise of administrative discretionary power with discretionary benchmark. However, while the practice of making administrative discretion benchmark in the administrative system is developing vigorously, the academic circle also gives cold thought to it. The questions involved include what is the nature of administrative discretion benchmark, whether it has legal effect, and how the court's attitude towards it in judicial review. Scholars believe that, if there is no legal authorization, the discretionary standards set by administrative organs as the basis for lower organs or subordinates to implement laws only have internal binding force in principle. That is to say, the discretionary benchmark should be identified as internal administrative rules, which are different from administrative regulations and rules. At the same time, since the administrative discretion benchmark still cannot fully consider the actual situation of a specific case, the administration still has a large scope of activity. If the decision made according to the discretion benchmark still involves the judgment of the administrative organ, the court can still properly express its opinion and judge its legality. If the discretion is lawful, the court should respect it; But if the discretion standard violates the general legal principle, that is, the administrative rationality principle, the court should not apply it. Therefore, the court's examination of the rationality of administrative discretion is still the last line of defense to prevent the unreasonable use of administrative discretion.

  Secondly, to examine the rationality of administrative discretion is to realize the legislative purpose of administrative procedure law -- to substantially solve administrative disputes. Compared with the administrative procedure law of 1989, article 1 of the administrative procedure law revised in 2014 adds "resolving administrative disputes" to the provisions on the legislative purpose. In order to realize this legislative purpose, many articles of administrative procedure law have been revised. Among them, examining the rationality of administrative act with the standard of "obvious improper" is no longer limited to the field of administrative punishment, which is conducive to solving the disputes arising from the serious unreasonable administrative act. Before the revision of the administrative procedure law, the court can only review the administrative discretion on the grounds of "abuse of power" and "unfair administrative punishment", which leads to many cases where the legitimate rights and interests of the administrative counterpart are infringed by serious unreasonable administrative ACTS and cannot get relief. This is obviously inconsistent with the spirit of modern rule of law. For example, in the administrative compensation dispute of housing demolition, if the administrative compensation decision has neither subjective malice of abusing power nor obvious unfair administrative punishment, the court can only examine its legality but not its rationality, which is not conducive to the substantive settlement of the dispute between the government and the demolished. In the litigation of demolition compensation dispute between Chen and luoyang municipal government and luoyang middle real estate co., LTD., the court of first instance and second instance decided that the defendant, luoyang municipal people's government, should only pay Chen the compensation and resettlement amount determined according to the "compensation standard for demolition and resettlement in 1997", which was obviously unfair to Chen. Later, the case was retried, and the supreme people's court held that the demolition and luoyang municipal people's government had the obligation to ensure that Chen received fair and reasonable compensation and resettlement. That cause housing price is not reasonable compensation disputes caused in the first instance and second instance is no problem for the court in accordance with the law, only that the 1997 relocation compensation standard to judge whether compensation legal, and did not consider housing prices rose significantly since 2002 and for demolition and luoyang government causes are the factors of people did not receive timely and reasonable compensation and resettlement for the demolition, not to rationality review compensation behavior.


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