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    Assignment代寫范文|行政訴訟

    來源:網絡整理? ? 作者:留學生活網? ? 發布時間:2019-07-24 15:18? ? 閱讀: 次? ? 文章分類:范文參考

    文章關鍵詞:Assignment代寫范文


    文章導讀:本文是一篇Assignment代寫范文,這篇論文討論了行政訴訟。行政訴訟中“以合法性審查為原則,合理性審查為例外”,對“法”的理解采用了形式法治的觀點...

      本文是一篇Assignment代寫范文,這篇論文討論了行政訴訟。行政訴訟中“以合法性審查為原則,合理性審查為例外”,對“法”的理解采用了形式法治的觀點,而“合法性審查包含對嚴重不合理行為的審查”和“合法性審查不排除合理性審查”,則對“法”的理解采用了實質法治的觀點。幾乎沒有人認為,在行政裁量權限內,法院就不能干預。在行政訴訟中確立對行政裁量行為的合理性審查是必要的。

    Assignment代寫范文|行政訴訟

      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,我國《行政訴訟法》主要通過第五十四條的規定來審查行政行為的合理性,即對于“濫用職權”的行政行為,法院可以撤銷判決。行政處罰顯失公平的,可以變更判決。從法律上看,似乎已經解決了行政行為合理性審查的問題,但是,由于理論和實踐對法律的認識存在著嚴重的差異,理性和合法性審查在行政訴訟和審查定位上存在著嚴重的差異,對行政行為進行了理性審查。法官很少用“濫用職權”標準來確定行政機關濫用自由裁量權的行為,導致“濫用職權”標準尚未充分發揮對行政自由裁量權的控制作用。2014年修訂的《行政訴訟法》第70條在保留“濫用職權”標準的同時,增加了“明顯不當行為”的標準,規定法院可以撤銷“濫用職權”和“明顯不當行為”的判決。行政處罰明顯不當的,可以改變判決。

      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".
           在撤銷判決的標準中增加“明顯不當”的,濫用職權是指行政機關在其職權范圍內不正當行使權力,違反法定賦予權力的目的,有重大主觀過錯。“明顯不當行為”不考慮行政機關作出行政自由裁量權是否存在主觀過錯,但包括違反立法宗旨或精神的行政自由裁量權、一般法律原則、一般公平概念和公正原則?;蛴捎谡J知偏差、客觀條件、疏忽或錯誤而產生的常識。”“明顯的不當行為”和“濫用權力”都是法院審查行政自由裁量權是否合理的標準,但也存在差異。首先,規格角度不同。“濫用職權”標準主要適用于對主觀故意違反行政自由裁量權的行政機關及其工作人員的考核,而“明顯不當行為”標準主要適用于對非主觀惡意違規行為的考核。行政自由裁量權。第二,違法程度不同。”“濫用職權”是一種非常不合理的行為,致使行政機關的決定沒有合理的依據,“是一種原始的違法形式,實質上涵蓋了違法目的和法律精神”。明顯不適當的“是相對溫和的”,是以合法性為前提,在合法性范圍內是不適當的。

      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.
           在我國行政訴訟中,除了對行政行為合法性的審查外,是否進行合理性審查,以及合法性審查與合理性審查之間的關系,一直是理論界爭論不休的問題。艾爾研究。一些學者提出,人民法院以合法性審查為原則,以合理性審查為例外。行政機關的行為構成濫用職權或者行政處罰不公平的,法院可以判決撤銷或者變更。一些學者認為,法院一般不考慮法律行政行為是否合理。不合理的行政行為,除達到法定不能容忍、超過法定限度的水平外,法院可以濫用職權、不公正予以撤銷或者變更。因此,合法性審查實際上包括嚴重的不合理審查。一些學者指出,合法性審查本身并不排除合法性審查,也不應排除合法性審查原則。由于行政合理性原則是自由裁量權領域合法性原則的延伸和發展,行政合理性原則從屬于行政合法性原則,因此違反行政合理性原則的行為屬于行政合法性原則。孤立無援本質上是一種違法行為。

      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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