Fixed force refers to the legitimacy of legal action have not been finalized when it was presumed to be valid, it is a legal act necessary for adjustment of the rules of procedure. Both acts must be in the case of parties meeting of minds to have fixed, but simply a party meant that force of unilateral acts. Official force of administrative act is an administrative act extends the scope of the effect of the whole of society, but not limited to the parties, it and administrative acts are presumed valid concept of two different areas of the law.
Presumption of administrative acts is effectively an important rule of administrative law. Since Ye Bifeng official force of administrative act, after the article was published, this rule would be known by names to the public force, and almost get the unanimous adoption of the domestic counterparts. But known before that the King had effectively called the effect of the presumption of administrative privilege, [1] this is actually the presumed valid as a fixed force.
Literally speaking, are presumed valid summarized as a fixed force more accurate, and public force to summarize the administrative acts legality in the ultimate question of how to get the effect before being confirmed is a bit baffling. By Mr Ye Bifeng said, “the official force of administrative act, refers to the administrative act upon, that anyone has been presumed to be lawful, effective and respected legal effect. “[2] this definition is actually consists of at least two layers of meaning: first, administrative actions once made is presumed to be valid; the second is the validity of administrative acts and of all persons.
It is clear that rule and effect after the commencement of the administrative act should be two different logical problems. Presumed valid is not a force of administrative act, but rather how to obtain a rule to the effect of administrative acts, so administrative action effective should undoubtedly refer first to the effect of the nature of the presumption.
First, the presumption of a valid and legal acts of the
The behavior problem of how to take effect include Executive conditions of behavioral cause and effect of the entry into force of the two factors.
(A) meant that the cause of legal acts in force
Legal Act refers directly to the pursuit of legal effect for the purpose of the Act, this pursuit of legal effects for the purpose of the subjective meaning of the law in the meaning that is often said. Although the legal act and meaning representation often used synonymous, generally meant that only a legal act of the subjective element, complete legal acts constitute also require other factors.
Wishes to have meant that play a role, should have a law on Rong recognize party autonomy, but once the legal authorization to his will set the legal relationship between the parties, between legal acts and legal effect creates a causality between human, this causal laws just because, rather than a cause of legal effect in itself. Natural causality by “God” set, and causation in the law by the legislators through sets of legal norms, so the law is not the legal effect of the reasons, but only to creators of causality. Now that the cause of legal fact is conferred by law, then the cause of study on the force of law when having to reconsider the legal norms, but just consider the causal relationship between legal acts and legal effect. Law standard is no longer the object of discussion here, it is the discussion itself.
Facts and events to the reasons for the legal facts as a whole as producing legal effects, but the “confirm the effectiveness of the legal act is essentially confirmed effect meant that represents the content of the legal act”. [3] just from experience point of view, this view is not unreasonable; however, in theory, only reasons of effectiveness as meaning is not strict enough, as criminal acts to complete with their hands, but can’t seem to handle as the perpetrator. Meaning really means is to make legal acts into its legal acts, so as to produce legal effects with reason, logic level, can only be considered causes of meaning is the force of law.
To sum up, legal acts is the fact that the legal effect of reason, intention is the effectiveness of the legal act can have logical reasons, [4] and the law is the creator of all these causal relationships.
(B) the conditions of a fixed force is a legal act in force
Any causal relationship must have a number of conditions, meaning that the effect is no exception. Between intention and the force of law created by the law of causality, causality conditions that occur naturally are prescribed by law, but this does not mean that legitimacy is the absolute prerequisite for legal acts in force, because in real life, whether legislative or legal norm itself will not automatically check whether these conditions have been met. If all the legality of the law would have to be thoroughly reviewed before you can take effect, extremely expensive operation of law, not to say, there is no guarantee that a party’s time requirements.
Solutions to this dilemma is to condition the entry into force of the legal act with legitimacy temporarily decoupled, meaning that only has some required to by the parties to identify external conditions, is presumed it to be valid, as to the legitimacy of legal acts, only when questioned in the sector concerned or the parties will review by the Court. Presumption “is based on probability theory, a treatment of the relations between things. High probability of a relationship between things considered normal relations, “while” allow the parties to this artificial treatment provides the contrary to be refuted “. [5] the system saves the cost of legal operation of the presumption.
Decoupling conditions of entry into force and legitimacy so that a legal act to gain a fixed effect, namely legitimacy in cases not yet know in advance declared themselves as legitimate a capability. Effective part of the procedural rules of the presumption, which is just a procedural effect, and it means that the entity effects have essential differences, in brief, is a intention before the entry into force of the effect.
Meaning how can have effect until the entry into force this? The need to clarify the meaning and effect of two different meanings. Meaning that refers to the subjective intentions of the parties pursue legal effect, logical analysis, mean that we must first set up in fact and law can be viewed as an intention to (it is almost agreed repeatedly). As the de facto mean that, although has the purpose of the pursuit of legal effects, but does not produce physical effects, the ability to produce legal effects because the intention is conferred by the law but it in fact meaningful force, that is regarded by the law of intention! This ability is a fixed force of factual basis.
(Iii) starting from the time of the establishment of legal action to have a fixed
Meaning after the force of facts as recognized by law, into a fixed force of administrative act, this is a program on the law of effect, it embodied valid rule of presumption is a prerequisite for adjustment of the effective operation of legal action. Is considered a legal act in force acts not as facts that need to facts constituted, this just means the entity effect; meaning that wishes to produce program effects must have some factual elements, such as the actors already adult, understood, and so on, also need to act with a specific identity expressed by some means.
Force of facts meant that the first is a not exists depends on the legal nature of property, but force is not a pure natural effect, it is still the legal set of products. Meaning said of facts effect from legal acts established Shi is has have, however this facts property is real produced was legal recognized [6] of facts effect, does not has inevitability–objective facts on people of will of of role Association by people of attitude effect, otherwise will no free causal law can statements has–but depends on legal specification of select, through this a select, facts effect on transformation for legal Shang of program effect.
Recognition for a fixed force of law and on the effectiveness of the entity conferred based on entirely different premises, not confirmed by ultimate legality would otherwise also exist does not force the issue. Entity effect comes from the meaning of the content, and yet a fixed force comes from the intention to set up and, of course, you can attach some simple standards of legality. Whether it is the intention to set up additional conditions of legality, must have clear features: can be clearly identified for the general public, need not be dependent on the identification of professional judges.
Second, administrative action, a fixed force of character
Before the force is a legal act in force before the “effectiveness”, can refer to it as the former effect. For example, civil and administrative decisions are likely to be accompanied by a specified date of the entry into force of the contract terms, specifies the legal act has not entered into force before the arrival date, but the specifies the terms of the effective date must be before that has generated (program) effect such effects that come from a fixed force.
A fixed force of legitimacy exists so that legal acts in cases not yet known to take effect.
(A) unilateral force and both sides fixed
Commonly referred to as unilateral acts not refers to only one subject, but only one party’s intention to produce a fixed and final legal effect. Particularly for purposes of administrative acts, most administrative decisions need Sifang parties participate and is called unilateral acts, because of administrative decisions simply unilateral declaration of the Executive Body to the entry into force, although Sifang whether participation of the parties may affect the ultimate legality of administrative acts.
Behavior requires not only the parties involved in both sides, must also have the intention of both sides, unilateral declaration cannot have a fixed force alone, of course, force is not an issue. Some scholars and a fixed force of unilateral administrative acts confused [7] while others assume denies contract civil behavior can be presumed valid. [8] in fact all legal acts are to take effect because the presumption, except that both acts and unilateral act to produce a fixed force conditions are different: both sides of the former meaning represents a consistent, which is only one meaning. Denied that the behavior of both a fixed force, was the judgment of the Court as a necessary condition of entry into force of the contract, had gone so flaunted by the autonomy of private law.
(B) a fixed force of unilateral administrative acts
Apart from administrative contracts, administrative acts are basically to have a fixed force of unilateral declaration, however on application situation of administrative acts and administrative act ex officio is slightly different.
Judging from the behavior established, should apply for administrative action, like the contract needs to have intention of the parties, but both principled differences in the way of the entry into force. In the contract, the establishment of the Party of intention does not depend on the other side, but contract a fixed force but are the result of both sides; should apply for the Act to set up a private application as the premise, but the formation of the first set was unilateral in nature.
According to the application after the administrative act must apply in Sifang parties can be launched, it established the need for both sides said, but once the administrative procedure is launched, it will no longer be bound by applicant of intention, but rather depends on whether the application of the statutory elements of fact and of executive authorities in the context of statutory discretion, this description should still apply for administrative acts were unilateral legal acts. Sifang Parties apply significance of expression of intention is twofold: one is to make the administrative acts in fact to begin (set up), is the fact of the application materials (not meaning) will ultimately affect the legality of administrative acts; it does not affect a fixed force of administrative act.
Contract, on the contrary, offer behavioral intention and commitment of interdependence on the meaning of the Act in effect, but in the Act on the establishment of the independent; single name from the point of view does not offer no commitment, but the time position of offer and acceptance are interchangeable, and there is no substantive difference between the two, the difference is what by accident earlier.
According to the terms of administrative acts on the set up is also has the obvious effect of unilateral, such administrative action can be made active by the executive authorities, and precedent set force produced does not depend on Sifang expression of intention by the parties.
(C) a fixed relationship between force and validity of other
Strictly speaking is not a fixed force of administrative validity of the Act itself, it just have a presumption of validity of the administrative act conditions, conditions of legitimacy as the ultimate administrative act is in force. When administrative actions are presumed to be valid later, public force with push not only qualitative, other effects such as binding, execution is the same with the nature of the presumption, but this pushed qualitative and does not affect the public force, binding, and with the inherent nature of the force itself, it simply indicates that the effectiveness of administrative act has not yet experienced the end of the confirmation procedure.
Due to the effectiveness of all entities on administrative acts can be based on a legal presumption arising, so it’s easy to have a fixed force between and effectiveness of apparent concurrence, Ye Bifeng on definition of the public force is the first comprehensive results of the public force. If effectively incorporated into official force into the connotation of presumption, then legitimate administrative action there could be no official power, because at the time of administrative acts are legitimate, fundamental presumption is no longer needed. Administrative act has not yet know the legality of public force, requiring the compliance of the whole society, are legitimate administrative action but does not have this effect, this is the confusion caused by the procedural and substantive aspects of logic paradox.
As a procedural effect, fixed and public power entities such as the effectiveness of essential differences. Only a fixed force of significance is to address the conditions of entry into force of administrative act, as to the question after the entry into force, such as effective scope, content and duration of effect, it should not be discussed earlier in the connotation of.
(D) whether the administrative act that all have a fixed
Administrative act with full force, is still limited, depending on the value of legislative measure. Note that regardless of what mode to take eventually confirm the powers of the force of administrative act always in the hands of the Court, for the parties, and are only legal presumption of only valid or invalid. Admit the existence of invalid administrative act, mainly affecting the citizens in the case of resistance or does not resist executive order can be obtained because of an invalid administrative acts were ultimately confirmed right of defence, is not to let citizens “do their own judges”. [9] therefore, the citizens of invalid administrative act in fact identified only, and has not announced its invalid power of citizens cannot be identified as an invalid judgment model on the right side by side each other and confirm the right of the Court. [10]
System of invalid administrative acts sometimes empowering citizens to defend the right, sometimes you might deprive citizens of their right of defence. When citizens choose to resist when the Executive order, for an invalid administrative act, citizens can be exempted from liability for disobedience, but resistance may revoke the administrative act did not get right of defence. If administrative action is to ask citizens to engage in serious unlawful acts such as rape, murder, citizens have obligations must resist not to accept the Executive orders as a defence. Ye Bifeng proceeding from the so-called public interest on standard, deny the necessity to resist any order, [11] is tantamount to act for the implementation of Nazi evil executioner who exonerated. [12]
Fixed is a presumption of legitimacy, but the presumption of legitimate after a statutory period is later converted to identify legitimate, Sifang litigant cannot seek relief. Of course, invalid administrative act and not become legal because of aging after.
Review for three, Ye Bifeng official doctrine
Study on validity of administrative acts in force in the first book also has a detailed exposition leaves believed that so-called “refers to the Chief of will on the relative power of human will to. It is actually a formation formed force of administrative act or rules, which is a protection of the law on the formation of administrative will to. “[13] this definition is very convoluted, inferred from later, should be the administrative subject in the process of administrative decisions mean that relative to the priority of Sifang party said, according to this definition, already has the force of law when the administrative act has not been set up!
Understanding of the public force deviation, thrown out on a fixed force of strange definition. Below pointed out that the theory of the public force and other related issues exist on some of the more obscure error, and leaf and colleagues to share national administrative law.
(A) the validity of the priority and effectiveness of administrative act
Sifang party in administrative proceedings and administrative subject status was not equal, Executive principal has a commanding leading powers of the administrative procedure, and have the right to decide on the entity. Leaf qualitative surprising of these rights: “the process of administrative acts, made for the administrative act is the effectiveness of administrative act before a fixed force of possibility offers.” In fact, here called “a fixed force of administrative behavior” is not an administrative act shall have effect and the effectiveness of the only executive powers, is a manifestation of the priority in the Executive process.
A fixed force was established before going down and entry into force of the administrative act shall have effect, it is the priority in executive decision procedures after the completion of the transformation of form. Executive dominance of priority first embodied in administrative procedures and the right to make executive decisions in fact; see these rights as a fixed force of administrative act is in acting contrary to, but well intentioned: administrative act is in fact a command, without some kind of laws giving effect in advance, how can be ordered?
Executive order release do need to have some kind of legal basis, but according to is not a fixed force of administrative act, but the law gives the Executive power, it already exists in the administrative procedure before the start. Since Ye Bifeng confusion in the priority of the Executive power, and a fixed force of administrative act, before coming to the administrative act in itself has not been produced (that is set up) when I already have a fixed force of strange conclusions.
(B) a fixed force of administrative act and legal acts of unilateral
Generally presumed valid administrative act in the field of administrative law at present as the unique characteristics of the administrative act, and to distinguish administrative acts and contracts, which effectively confused the results of the first set of force and unilateral.
In accordance with Mr IP said, a fixed force exists is because the results of modern administrative law involving citizens in administrative procedures: “from the perspective of modern administrative law, has no legal effect until the administrative acts, a fixed force of administrative act could only be construed as a unilateral administrative act, that administrative action is totally unilateral intention of the administrative body. “[14] but in modern administrative process in the, because” administrative will of and relative people will of two species respective independent will of of exists, “” in two species will of not consistent of situation Xia, to can implementation public target, in legal Shang also need makes a will of obedience another will of “,” If no modern administrative law of the development, so not need administrative behavior of first will force, and through administrative behavior of unilateral sexual also can analysis administrative behavior of meaning constitute. ”
If, as quoted above the “unilateral” understood as only one party participation, it almost does not exist in modern administrative law of unilateral acts. Unilateral legal act does not in fact excluded the participation of parties and even, it just means that only a party means to have the fixed effect. Participation of both sides in a legal act, relative to the other party, the party has the right to decide, with priority over meaning power, this priority and fixed is not the same thing, it is the administrative decision can have a fixed force of unilateral power based.
(C) be presumed to be valid “validity” and born of the presumption of validity
Although the content of the presumed valid as an official, but it also says that the public force is “requires that all State organs, social organizations and individuals to respect the legal effect”. Official force according to their literal meaning, be defined as “requires that all State organs, social organizations and individuals to respect the legal effect of” no problem, but do not see the “public force” these three words and what is the correlation between the entry into force of administrative act. Since the “official force of administrative act is the legal effect of a presumed”, [15] then the other effect is a kind of final administrative acts determine the effectiveness of it? Obviously, not presumption arising from Mr IP’s effectiveness and administrative action can be presumed to be effective this “effect” to differentiate did note that binding and executive power, and so on can also be due to the legal presumption arising.
Official and fixed power mix is not originated from the leaf, from the book of research on the effectiveness of administrative act, Germany, and France and Japan’s theory seemed to hold this view, but according to the official has a different view. Japan think that administrative law, public force “refers to the administrative act even if the illegal, is still valid and thus binding on the legal effect of the persons concerned”, “as long as you have permission of State organs are not officially withdrawing them, in principle, valid, binding to nationals. “[16] as regards the substantive basis of the public force, Nam Bo thinks is to protect the acquired rights of citizens,” as long as people of importance to the protection and trust of the General Public Administration Act, you have to definitely official force of administrative act. “[17] this view explained why actually not administrative acts are presumed valid, but why force of administrative act which has been in force for the whole of society has. Mr IP agree jielieneike presumption of legitimacy of that that “official force of administrative act is the legal effect of a hypothesis”, “without proof in the previous, the administrative acts legality is not actually clear.” [18] the said presumption of legitimacy can explain is why the administrative act is presumed to be valid, but could not explain why the entry into force of administrative act can be valid for the whole society.
As long as some analysis can be seen, South bofang and Ye Bifeng definition of official force though, but what they actually think it is not the thing: nanbofang stressed the public force to the world, Ye Bifeng stressed the official push of qualitative. This awkward situation because they are what the administrative acts are presumed valid and after presumed legal effects mixed together, do not see both in procedure and entity levels, respectively. Presumption of administrative action, effective solution is how administrative acts in force, and the public force is the force of administrative act on the world, it is clear that if effectiveness must be after the commencement of the Act makes sense.
The legal presumption of lack of reflection can be described as Ye Bifeng total root cause of the official doctrine. In public to select full mode will force justified when Ye Bifeng believes that “statutory State agencies to confirm the uniqueness of invalid administrative act and monopolistic, notes the existence of invalid administrative act”, and thereby affirmed that “France is totally official imposed force mode”. [19] if invalid from the monopoly of the right to confirm launch of invalid administrative act is of the public force, then also can, in turn, derived from presumption of administrative act valid Sifang parties have confirmed the administrative acts legality of judicial powers! Leaf official doctrine is dedicated to illustrating the presumed valid administrative act, but forgot to presumption of administrative act invalid, which say that it is a big regret.