行政法的基本原则

行政法的基本原则 The basic principles of administrative law I. an overview of the basic principles of administrative law (1) concepts It is through the administrative laws and regulations, and exercise guidance of the administrative right and basic principles of the supervision, but also reveals the basic features of administrative law and the main method to distinguish with other departments. (two) content 1., the principle of administrative legitimacy 2., the principle of administrative rationality Two, the principle of administrative legitimacy The principle of administrative legality refers to the existence and exertion of administrative power, which must be in accordance with the law and in accordance with the law, and shall not contravene the law. Its basic contents include: 1. the administrative functions and powers of the administrative body are set by law and awarded according to law. 2. administrative bodies must comply with and abide by the administrative laws and regulations in the implementation of administrative acts. 3., the administrative act of the administrative body is invalid. 4., the administrative subject must take corresponding legal responsibility for the illegal administrative act. 5., all acts of the executive body must be subject to the people's congresses, administrative and judicial supervision. (I) the principle of legal reservation It means that the administrative activities must be authorized by law, and there must be explicit basis for the law, otherwise it must not be. 1. legal reservation in legislation (1) relative legal reservation The State Council may be authorized to formulate administrative regulations. (2) absolute legal reservation As for administrative law, compulsory measures and penalties restricting personal freedom belong to the absolute reservation of law. 2. legal reservations on law enforcement Its essence is "no law", namely, no administration, no explicit prohibition, that is civil liberty. Understanding: (1) this principle is not explained from the history of administration and law, but from the perspective of administration by law and the rule of law. (2) the principle of the relative person, it means that the law expressly prohibits free. (3) the principle is mainly for the administration of burden, and has some exceptions to the administration of benefits. (two) the principle of legal priority 1. concepts It refers to the fact that the administration should be bound by the existing laws and shall not take any measures that violate the law. The "law" here is a broad sense of law, not merely a law of the legislature. 2. content (1) the law is superior to the administration. (2) the administration shall not break the law. Thinking: comparing the principle of legal priority and the principle of legal reservation 1., the requirements of the principle of legal reservation are more stringent. The former is to prohibit the administrative organ from violating the current law passively; the latter is to request the administrative activity to have the legal basis positively. 2. different scope of application. The former can generally be applied more generally; the latter is mainly limited to the actions or activities of an administrative organ involving matters of particular importance. 3. different effects. The former mainly deals with the legal supervision over the administration, and the latter all determines the scope of the administrative supervision by law. Three, the principle of administrative rationality The principle of reasonableness, refers to the administrative behaviors based on the implementation of administrative authority in the context of the objective and moderate, not only is the form of the law, but also to meet the "rational" and "justice" of common law. One It is only applicable to administrative discretion rights within the scope of application, not a limited act. 2., it is only the principle of administrative law, not the principle of administrative procedural law. (I) principle of proportionality The principle of proportionality in administrative law refers to the fact that administrative power has legal basis, but it must be exercised in the least way to minimize the damage of the relative. 1., the principle of appropriateness The measures taken by the administrative body can achieve its stated purpose, or at least contribute to the realization of the goal. 2., the principle of necessity That is the administrative body in the premise to achieve administrative purpose, should choose the relative who suffered losses are kept to a minimum range and the lowest level of administrative means, or choose to maximize the protection of citizens' rights and interests of the administrative means. 3., the principle of proportionality The administrative body to implement the administrative administrative means, although the relative who has been minimized, but the loss can not exceed the chief purpose of the pursuit of public interest, and should maintain the balance of public interests and personal interests or consistency. case analysis When the food hygiene and epidemic prevention department inspected the food processing plant, it found that the hygiene standards for the infant food of the factory were not in conformity with the provisions of the health law. According to the "food safety law" eighty-fifth, "illegal production and operation of food value of less than 10000, and impose a fine of not less than 50000," the provisions of the factory imposed a fine of 50000 yuan (2000 yuan). Will the above administrative penalties violate the basic principles of administrative law? (two) principle of openness and impartiality in administration The specific requirements for administrative openness include: 1., the content of administrative behavior is open; 2., the administrative process is open; 3., administrative information publicity. Administrative justice requirements: 1. substantive justice shall be without prejudice, not swayed by personal considerations, arbitrariness and imperiousness. 2., procedural justice: (1) do not do their own cases of the judge; (2) not unilateral contact; (3) to make an adverse decision to listen to the views of the administrative counterpart. (three) principle of Reliance Protection The principle of trust protection, refers to the modern country under the rule of law, protect the people's legitimate rights and interests based on the consideration of the administrative subject in the administrative process for the formation of the expected behavior or commitment factors, must abide by credit, not free to change, otherwise it will bear the corresponding legal responsibility, as a result of major public interests need to change must also make corresponding remedial arrangements. Applicable condition: (1) the basis of trust is the certain act of the administrative subject, including act, omission and commitment, whether or not the act is lawful. (2) a person or an organization has a trust in the administrative act, which is manifested by some act taken by an individual or an organization. (3) the trust of an individual or organization is a legitimate trust worthy of protection. The manner in which trust is taken: (1) continued protection (2) compensation and protection case analysis In July 2002, a Hong Kong invested enterprise invested 270 million yuan to sign a cooperation contract with a municipal water company in the mainland to handle the city's sewage treatment. Enjoy the right to formulate the rules of the municipal government has also specially formulated the "sewage treatment franchise management measures", made a series of commitments to Hong kong, It also stipulates that the government shall be liable for the preferential payment of the sewage treatment fees and the difference compensation, which shall be abolished at the end of the cooperation period. In February 2005 the municipal government in cooperation project is prohibited by the state in foreign debt financing "fixed return" project, in violation of the "notice" the general office of the State Council on issues related to the proper disposal of existing projects guaranteeing the fixed return of foreign investment of the spirit, should belong to the scope of cleaning, cancellation, revocation of the grounds, to make "on the abolition of" sewage treatment franchise management "decision", but not the decision to inform partners and Hong kong. Hong Kong held that the municipal government's improper practices, the reasons are: first, the State Council documents explicitly requested the government at all levels of foreign investment projects involving fixed return should be "full consultation" and "properly handle", the municipal government fail to fully demonstrate, and afterwards do not notify the other party in violation of the spirit of the document; second, to prohibit the approval the new "fixed return" project has been banned in September 1998 the State Council notice, and cooperation project of sewage treatment in 2002 after the Municipal Government consent, approval, the establishment of the original foreign trade department of the Ministry of foreign trade and economic record after the formalities, the procedure legal project. ? Please use the principle of administrative law to comment on the above-mentioned practices of a city government. Reflection: the relationship between the principle of administrative legality and the principle of rationality 1. unified relationship Both of them constitute the principle of administrative rule of law, but the boundary of legality and rationality of administrative law is not absolute, and the two can be transformed mutually. 2. opposing relations The former mainly solves the problem of administrative legality and illegal settlement, and the latter solves the problem of appropriateness. The former is applicable to all fields, and the latter is mainly applicable to the field of administrative discretion. If an act of an administrative subject violates the former, there is no need to consider the question of rationality, and an act that is a discretionary act should consider whether it is reasonable or not.