中国瑕疵行政行为理论及其实践探索

Abstract

In recent years,the concept of "flawed administrative act" began to appear frequently in Chinese administrative law theory and administrative trial practice. Although Chinese scholars generally show strong interest in the theory of flawed administrative act, especially the theory of invalid administrative act and the theory of revocable administrative act, trying to construct a series of system of the flawed administrative act and conduct more in-depth studies,but there are still some problems in theoretical research like a lack of uniformity in the definition of flawed administrative act，the judgment standard of different types of flawed administrative act is not clear，a difficult for the relative to achieve in Resistance to invalid behavior，so the theoretical research can not effectively respond to the administrative rule of law practice. At the same time, the legislation of flawed administrative act is not unified with the stipulation of flawed administrative act extension, the stipulation of minor flaw administrative act, the situation of the same type of flaw and the way of relief. In practice, the people's courts at all levels in China have, through a great deal of trial practice, worked out trial standards for different types of administrative acts of defects. However, because the courts have different understanding and understanding of different types of administrative behavior, even for the same type of flaw administrative behavior also appeared in the same case different sentencing phenomenon. Therefore, the study of flaw administrative behavior, both in theory and in practice are faced with some difficulties, need to be improved. China should establish a unified administrative system of flawed administrative act in the future Administrative Procedure Law, define the flaw administrative acts in a broad sense, and clearly define the standards and legal consequences of administrative actions of different types of flaws. In addition, administrative litigation and administrative reconsideration decisions should be added to give administrative organs the opportunity to remediate flawed administrative acts.