Basic knowledge of legal institutions: Administrative Law and Administrative Procedure Law
Administrative Law Section Overview
First, the meaning of administrative law, basic principles
(A) administrative law meaning
Administrative Law is the general term for the legal norms of responsibility of the State administrative agencies, authorities, working principles and activities of the program and the like. Administrative law mainly has the following characteristics:
1. Administrative Law has not yet formed a unified, complete entity code.
2. A large number of administrative legal norms, a wide range.
3. Administrative rich content variability.
(B) the basic principles of administrative law
The basic principles of administrative law, refers run through the administrative legal norms, basic principles of universal significance for all administrative activities.
1. The principle of administrative legality. The basic principle of administrative legality is the most important principles of administrative law. Administrative requirements of the principle of legality must be done in the field of administrative law: administrative law, sound the alarm bell.
2. Principle of Reasonableness. Principle of Reasonableness is another important part of the basic principles of administrative law. Administrative rationality principle requires that the exercise of executive discretion, must comply with the spirit of the law; the motivation of administrative acts are justified; content to meet the reasonable administrative action, in line with social ethics.
[Zhenti example], "implementing an administrative management, shall be in accordance with the laws, regulations and rules; no laws, rules and regulations, the administrative organ shall be made legitimate rights and interests affect citizens, legal persons and other organizations or to increase citizens, legal persons and decided to "other organizations obligations. This is mainly reflected in the administration according to law in which a requirement? ()
A. lawful administrative due process B. C. D. reasonable administrative honesty and trustworthiness
[Resolve] this question the correct answer is A. This casual working title is longer, but the options simple, first of all, honesty is not the principle of administrative law principles of civil law, it is excluded. Second, the observation of casual working in the key words "shall be conducted in accordance with laws, regulations and rules of the" natural expression is legitimate administration.
Second, the relationship between administrative law
(A) an overview of the relationship between administrative law
Administrative legal relationship is adjusted by the administrative law of social relations in the national executive administrative activities that occur, is a legal relationship. Compared with other legal relationship, administrative legal relationship has the following characteristics:
1. The party must be a legal relationship of administrative or commissioned by the state administration and authorization of institutions, organizations or individuals that must be represented in the national party administration.
2. The status of the parties in the legal relationship between the executive is often unequal.
3. all the relevant laws, administrative regulations and rules and other regulations of the legal relationship of the parties prior administration, their rights and obligations, administrative authorities and other parties are not free to choose.
4. administrative legal relationship of the offender, usually responsible to the competent authorities, sometimes also responsible for the aggrieved citizen.
Only if it has the above characteristics of social relations, is the legal relationship between the executive.
[Zhenti] The following examples of social relations belong to the Object of Administrative Law is ().
A. Internal relationship management of multinational companies
B. conclusion of the purchase contract and the executive form of relationship
C. civil relations executive staff and others occurred
The exercise of a right of administration and administrative counterpart has arisen social relations executive D.
[Resolve] this question the correct answer is D. Determine a legal relationship is not administrative legal relationship, should first determine the legal relationship between one of the main administrative body is not followed to determine the legal relationship is not established in the executive administration activities. Option A, "management relations within multinational companies," the legal relationship no administrative body, it is excluded; one of the main option B, the legal relationship of the executive, but the executive to conclude the purchase contract is not specific to the exercise of powers of the executive , not administrative activities, so option B exclusion; option C should be excluded obviously, is a civil relationship.
(B) the relationship between administrative law body
1. administrative body
Administrative body is the main party to the legal relationship between the executive, the consequences of that is with national administrative power, to exercise executive powers in its own name, and operate independently of their exercise of administrative powers of the behavior of the bear the corresponding legal responsibility of the national authorities or social organizations.
In our country, in accordance with the relevant provisions of the Constitution and the law, the administrative body including:
(1) the executive. The executive is the main administrative body, but not all can become the executive administrative body. In accordance with the Constitution and the relevant provisions of the law, to be the administrative body of the executive are: an agency of the State Council, composed of the State Council, directly under the State Council, local people's governments at all levels, local people's government departments, local people's governments.
(2) an agency and the agency. It refers to an agency of the executive government sent as needed. In our country there is an agency of three categories: administrative office provincial, autonomous regional people's government approved by the State Council; County District Office, County People's Government of provinces, autonomous regions and municipalities approved the establishment; municipal districts, not divided into districts by the Municipal People's Government on a people's government approved the establishment of the Office of the streets. Means a branch or agency of government departments to set up representative offices, which are only in the case of legally authorized only for the administrative body, such as the agency of the Public Security Bureau police station, the law authorizes it may be a warning or a fine of 500 yuan, in this range inside, the police station is the administrative body.
(3) laws and regulations authorized by the organization. It refers in accordance with the laws, regulations and obtain an administrative authorization and qualification to exercise administrative powers of organization. China's existing laws and regulations authorized by the organization: social groups; institutions; enterprises; grass-roots mass self-organization; specialized agencies, such as the Patent Reexamination Board.
[Zhenti] Examples of administrative subject legal requirements, refer to the conditions of the administrative body of the organization will soon become law in the set. It can be regarded as specific provisions of the administrative body of administrative laws and regulations. In general, the qualification of administrative legal requirements, there are three: enjoy executive powers to carry out administrative activities and () in its own name (s).
A. B. sole political responsibility for independent administrative responsibility
C. Independent legal liability D. independent social responsibility
[Resolve] this question the correct answer to BC. Administrative body can bear legal responsibility and not the responsibility of the political or social responsibility on their own behalf. Administrative liability is also a legal responsibility, therefore, the title selected BC.
[Zhenti] Examples of the Spring Festival approaching, a city health administrative departments of grocery sales market to be checked. In this administrative relations in the subject is ().
A. Food B. grocery seller
C. D. health administrative departments of health administrative departments and non-staple food sellers
[Resolve] this question the correct answer is D. The Legal Relations of the administrative executive and administrative body of the opposite party. Administrative body, refers to the right to enjoy the national administration, to exercise executive power in its own name, organize and operate independently undertake corresponding legal responsibility thus generated. Administrative counterpart refers to the legal relationship between the executive and administrative body in the corresponding one of the citizens, legal persons and other organizations. This problem case, a city health administrative department is the administrative body, food sellers is the administrative counterpart. So this question the correct answer is D items.
2. The administrative counterpart
Administrative counterpart relatively short man, refers to the position in the management of citizens, legal persons or other organizations in administration. The main features of the administrative relative person is:
(1) administrative counterpart is one of the administrative body corresponding to the administrative body which constitute the main body of administrative legal relationship together.
(2) the administrative counterpart in the management position in the legal relationship between the administration.
(3) administrative counterpart can be either citizens, legal persons or other organizations may also be in other non-executive director of the managed status.
According to the provisions of the Constitution and laws, rights and obligations of the administrative relative person's rights and obligations, including the rights and obligations of administrative procedural law on administrative substantive law, the specific content of those rights and obligations are governed by different administrative legal norms. Administrative counterpart include:
(1) citizen. Citizen means a person who has the nationality of the People's Republic of China.
(2) legal entity. Is a corporation with respect to natural persons, and refers civil rights and civil capacity, according to the independent enjoy civil rights and assume civil obligations of the organization. Legal including: corporate, legal authorities, legal institutions and corporate social groups.
(3) other organizations. Other organizations means established by law, there are certain organizations and property, but do not have the legal personality of the organization.
(C) administrative licensing and administrative commission
Administrative authorization refers to the laws, regulations and rules of a free independent administrative authority of this institution or organization, granted administrative powers so that they qualify the administrative body of the act. Chief delegate administrative authority to delegate administrative authority or administrative matters within its competence duties according to the relevant administrative organs, social organizations or individuals, in the name of the delegate authority entrusted the implementation of management practices and the exercise of authority by authorizing organ bear legal liability.
In the administrative commission, the transfer of administrative powers and responsibilities does not occur, commissioned by the organization does not thereby obtain an administrative powers, and therefore not subject to administrative qualifications. According to the organization entrusted with the exercise of executive powers in the name of the administrative body must entrust the commission, rather than the organization entrusted own name, its external behavior is not its legal responsibility to bear, but borne by the administrative body entrusted.
[Zhenti] Examples of the county commission and Technical Supervision county agricultural technology promotion stations to exercise the right to punish, technology promotion stations to units and individuals selling fake seeds should be () the name of the exercise of the right punishment.
A. B. Technical Supervision County Agricultural Technology Extension Station
C. Agricultural Technology Extension Service county government law enforcement station D.
[Resolve] this question the correct answer is A. Technology Extension Station was commissioned as an organ is the implementation of the administrative penalty authority, but not the administrative body technology promotion stations, technology promotion stations should exercise the power of administrative punishment in the name of authority, ie the county commission and Technical Supervision.