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Administrative measures, yesState administrative organsUnilateral decisions and handling of specific practical problems in administrative activities.It is the most widely used means of national administration.
countryadministrative organaccording tolawRegulations, which have direct legal effect on specific objects or eventsadministrative act。be relative toadministrative organIn terms of the act of formulating normative documents, also known asAdministrative sanctionAdministrative treatment.It is an important means of administration.Administrative laws and regulations are implemented through administrative measures.
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According to differentstandardAdministrative measures can be divided into different types.According to whether the administrative organ has a certain choice or a certain range in implementing the provisions of laws and regulations, administrative measures can be divided into discretionary and binding discretionary.When an administrative organ takes measures, it has the right to make decisions within this scope according to the specific circumstances, which is called discretion;The provisions of laws and regulations are very clear and specific, and the administrative organ can only comply with them. If there is no room for free disposal, it is called binding discretion.Discretionary acts in violation of the restraint provisions are illegal and may lead to litigation.The improper exercise of discretion is administrative misconduct, which is generally resolved through administrative reconsideration procedures.Correctly stipulate and exerciseDiscretionary Power, Yesadministrative legislationandAdministrative law enforcementImportant issues.According to whether the administrative organ can take administrative measures on its own, it can be divided into administrative measures based on its own power and administrative measures based on application.Administrative measures can be divided into administrative measures that must be accepted and administrative measures that do not need to be accepted according to whether the administrative measures take the acceptance of the management counterpart as a necessary condition.According to whether the administrative measures must meet certain conditions, it can be divided into necessary administrative measures and informal administrative measures.According to whether supplementary conditions are needed for the effectiveness of administrative measures, it can be divided into independent administrative measures and supplementary administrative measures.[1]
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① Approvals and orders.Take measures to approve the application, and the result may be approval or rejection;Take ordered measures against unsolicited initiatives, such as ordering tax payment. ②Permits and Exemptions.The measures to ban ordinary people and remove the ban on specific people and things are permission, such as allowing some people to wear guns;Corresponding to the act obligation, but the measures taken by the administrative organ to exempt a specific person from the act obligation under specific conditions according to law are exemption, such as exemption. ③Giving and depriving.Set legal capacity or give certain rights to specific objects according to law, such as approvalenterpriseRegistration, giving the right of production and profit;To deprive a specific object of legal ability or rights according to law, such as stopping business. ④Approval and rejection.The measures taken to approve the application for permission or exemption are approval, also known as "approval".The measures taken when the application for permission or exemption is not approved are rejection. ⑤Certification and confirmation.After reviewing the legal relationship proposed by the parties that has not been confirmed whether it is true, the measures taken when confirming its authenticity shall be taken as proof.The measures taken to confirm or deny the existence of the legal relationship proposed by the parties after reviewing whether there is an uncertain legal relationship. ⑥Acceptance and notification.For applications requiring permission or exemption, it means that the measures taken when accepting and preparing for approval are accepted.The measure to make the opposite party know that a certain legal relationship has been established is notification.[1]
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Validity, Elements of Validity, Invalidation and Cancellation
Administrative measures taken according to law have legal effect and have not been renewedlegal proceduresNeither the management counterpart nor the law enforcer can be changed or violated.Once the administrative measures are determined, the administrative organs have the executive power to take certain measures to realize them.Generally, the administrative counterpart will not stop the execution after he/she files an administrative lawsuit to the court against the administrative decision.[1]
The elements of legal effect of administrative measures include: the subject of taking measures must be a legally constituted administrative organ, and the measures taken should be within the scope of its functions and powers;The content of administrative measures must be definite, have the possibility of realization, cannot violate the provisions of the Constitution, laws and regulations, and conform to the public interest;The opposite party of administrative measures must have legal capacity for rights and conduct;The subject matter of an administrative measure must be the subject matter of the administrative measure according to law;The adoption of administrative measures must comply with legal procedures and take legal forms.In the absence or violation of any of the above, administrative measures may be defective and therefore revocable.[1]
Invalid administrative measures have no binding force on anyone.Those who lack the elements of establishment of administrative measures are invalid. Once they are determined to be invalid, they are not established.It shall be deemed invalid for one of the following reasons: ① The organization taking administrative measures is not legally constituted and thus has no capacity for conduct; ②The organ taking administrative measures exceeds its statutory authority; ③Take administrative measures against the person who cannot be the object of the administrative measures; ④Take administrative measures against the subject matter that cannot be the subject of the administrative measures; ⑤The content of measures is impossible and unclear; ⑥Must have legal means but not; ⑦Having to go through legal procedures without going through them.[1]
Administrative measures shall be revoked through the competent authority in any of the following circumstances: ① Violationconstitution, laws, decrees and correspondingAdministrative regulationsSpecified measures; ②Measures against the public interest.The revocation has retroactive effect. After the revocation of an administrative measure, it is deemed that the administrative measure has not been taken since the beginning.[1]
