Concepts of Administrative Behavior

[Abstract]: Administrative Behavior and administrative legal act is a class of relative administrative action, external does not have the force of Law, but may be the administrative relative rights and obligations of pArties causing a real impact. From the extension of term, including Administration construction and maintenance of the daily behavior of the implementation of sex, advice and circular behavior of non-formal and illegal administrative acts of violence violations.

[Keywords]: Administrative Behavior behavior specific administrative act of Civil legal effect of the facts

As the state Administration and payment to the Administrative Development Services, Administrative Behavior play an increasingly important role. However, what Administrative Behavior connotation and extension of how to define, how the damage to its relief, not only is legislative gray area often neglected by theorists. confined to space limitations, this paper only the connotation of Administrative Behavior problems.

First, the evolution of the concept of Administrative Behavior

In the era of the Weimar Republic, Germany, the famous scientist Yelv ng administrative Law that "a simple high-power executive" word, can be described as the first bud Administrative Behavior. So-called "pure high right Administration" refers to the housing and municipal, streets, parks, reservoirs and other technical aspects of building behavior and the executive authorities issued words of persuasion, such as the police in order to avoid accidents traffic safety propaganda issued by the pointer to provide the public consultation, mediation and legal acts contribute to social harmony. { 1} the mainstream of contemporary German administrative Law textbook that: "Administrative Behavior is the direct result of the fact that only the results under certain conditions, but also have effects the behavior of Law." {2} But whatever Administrative Behavior can produce legal effects, academics, We do not deny the legal significance of acts of administrative facts. administrative consequences of the fact that illegal acts can not be like that would cause an invalid legal act, may revoke the problem. But if the illegal infringement of Administrative Behavior legitimate rights and interests of citizens, the victims have clear consequences claims and damages claim can be brought to the administrative court of appeal in general payment to confirm the complaint, or by state compensation programs to get relief {3}

In France, the theorists that Administrative Behavior is not directly effect the behavior of the Law occurred. For example, the material before making a decision to make decision for behavior and the actual execution behavior, are not directly attributable to the fact that the legal effect of administrative acts. Administrative Behavior, some completely legal effect does not occur, for example, Bureau of Meteorology weather forecasts, and some occur because the legal effect of external factors, such as administrative guidance due to the relative legally acceptable side effects. the fact that the validity of behavior problem does not occur, may occur in the law and the Civil responsibility of the Chief of the main issues such as liability, disciplinary responsibility, {4}

Research on Administrative Behavior in Japan less Shiono Wang said: "According to the theory of Civil legal act, the meaning of behavioral effects, can be divided into legal and administrative action the fact that behavior." {5} Japan, the fact that the administrative law scholars, the Chief behavior is characteristic of administrative guidance in a more in-depth, and has passed legislation on administrative guidance to the norm. In Japan, although not legally binding administrative guidance, but the losses caused by administrative guidance, the academic view was advocated either through administrative channels of relief proceedings, but also to the institution of the State Compensation {6}

Civil law scholars on Administrative Behavior content defined broadly along the following two clues: First, "simple high-power Administration" were developed based on the "legal effect of that." Second, learn the facts of Civil legal action and civil Xing Wei theory developed from the Boundary "means to say," [1]. Because of differences in perspective, civil law scholars Administrative Behavior defined as yet no agreement. But the fact that civil law for acts of administrative studies the fact that from the beginning of administrative behavior as "extrajudicial act" stage, the Development to the fact that the behavior should be subject to administrative constraints of administrative law to explore ways on how the administrative law of the facts the damage caused by the behavior of the phase of relief .

Common law from a pragmatic standpoint, not to administrative acts and the fact that acts of legal sub-sector, but persist as long as the legal rights of citizens affected by administrative action, can obtain relief through legal channels. In the common law unique judicial system, this model may well be a good choice [2].

In China, the concept of Administrative Behavior was first seen in the administrative system of China's first textbook <<Administrative Overview>> the book the authors suggest that Administrative Behavior is no direct legal consequences of administrative actions {7}. Although Administrative Behavior as early as 1983 the concept put forward, but the fact of administrative law scholars for the administrative act theory does not go deep. especially in China's administrative law textbooks, Administrative Behavior theory rarely mentioned. to "Administrative Behavior" as the topic is one of the few academic papers. Some scholars even to Administrative Behavior to treat a specific administrative act as {8}. only in recent years, Administrative Behavior was attracted academic attention.

Second, the definition of acts of administrative fact that several key issues

Administrative Behavior on the concept of the same countries have not formed a view. That some scholars believe: Administrative Behavior itself is a very uncertain connotation and extension of features but also has an open concept, so if they stick to their concept of scholars abstract definition of the theoretical value is not very significant {9}. For this view, I beg to differ. Administrative Behavior Since it is an objective reality, it will result in cancellation of the concept in that type of conduct covered by the lack of a The name of unity, not only hinder the theoretical Research, and administrative trials to guide, protect the legitimate interests of administrative opposite side is also very bad. By examining the Germany, France, Japan, the common law, and China's Taiwan and mainland China scholars on administrative the fact that the definition of behavior, I believe that fact to act for the Chief accurate positioning, must be from the following aspects:

(A fact that acts of civil Theory

Means that civil element of scholars has been the standard, the civil legal acts and facts are divided into acts. Civil legal action and civil acts mainly of the following facts are different.

First, the legal act to mean that its essential elements, it is essentially a legal relationship established actors external said. For example, the pArties entered into a contract issued for the offer to act is an intention. And the fact that behavior is completely not to meaning that its essential elements, the pArty is not the purpose of the act to implement the pursuit of civil legal consequences of an objective method which acts constitute the elements of the fact that it does not take into account the specific intent of the different actors content {10}. For example, China Taiwan, China and France Code required to obtain possession (Article 940, not the main thing the first accounts (section 802, the discovery of objects buried (No. 808, Accession (Article 811 below, and without a (Section 172, as long as there is in fact These acts, that is, the effect of the law can occur, the behavior of people without means to obtain such legal effect, in the do not ask, these acts are called civil the fact that behavior {11}. Second, the civil legal act to the perpetrator means that the contents of legal effect. law gives legal effect legal reasons, is the wishes of its intention Xing Wei, also wants to place such a force. and for the fact that behavior, has the legal sense, not the perpetrator of the intention, but the behavior of the objective results. In other words, the fact that the expected behavior does not mean there is validity of the parties, as long as the perpetrator of the fact that the objective activities constitute acts of the parties according to the law between the rights and obligations. Finally, The basic rules of legal acts which began around the meaning of that, mainly related to ideographic human capacity, meaning that the true voluntary, meaning that is legal, means that not violate morality and social order, meaning that the form of compliance with the statutory requirements. For example, who do not have the legal capacity means that you can not expect the legal consequences occur. And the fact that the basic rules of conduct aimed at the establishment of the legal relationship between elements of a meaningful description of the facts, usually including: the subjective state of mind and behavior of the objective content, behavior consequences arising from the objective, the causal relationship between behavior and consequences of such {10}. so under the relevant provisions of the Civil Code of Taiwan, to capture the rare insect-year-old children, because of the first to obtain ownership of the account (No. 802, dig-year-old children found buried diamonds, facilitate the acquisition of ownership (Article 808; 13-year-old children to a neighbor collect mail, the Department no legal obligation, but for others on behalf of management, was set up and without a (s "72, these acts without considering the meaning of that, as long as compliance with the law the legal effect of the elements that occur are known as the fact that behavior {11}.

(B theory of the specific administrative act

Administrative Behavior and civil fact that behavior is some connection between it? Theory of civil behavior is the fact that Administrative Behavior for it [3]? This should be of Administrative Behavior, the relationship between the specific administrative act administrative act to whether to start External legal effect as the standard legal acts can be divided into administrative and Administrative Behavior. The Chief Executive of the main legal act is made legal effect to the purpose of foreign administrative acts, including the abstract and the specific administrative act administrative act. the specific administrative act is the Chief the most important legal acts of a type. Therefore, this study only the fact that the specific administrative action and administrative behavior. It is worth mentioning that the theory of administrative law abroad mentioned Administrative Behavior, and the specific administrative act is (Chief corresponds to the concept of punishment.

Department of the specific administrative act is not the word of scholars initiated. The concept of a specific administrative act first seen in 1826, the German administrative law doctrine, forming the most important 19th century building with the father of administrative law in Germany reputation of the Otter Maya. Altec Maya administrative action will be defined as "the Chief of the cases is for the people in and what their requirements for the law, said the official," {12}. of scholars called this the specific administrative act, the German scholars called the administrative action, China Taiwan scholars call an administrative sanction. Although called different, but its meaning is basically the same. In Germany and Taiwan, China, on the meaning of the specific administrative act, there are legislative provisions. According to the German present <<Xingzheng Procedure Law "> Article 31, paragraph 1, states:" The administrative action is within the executive authorities in the field of public law, to regulate individual cases, direct foreign legal effect for the purpose of which is a variety of disposal, decision or other public law measures. "Taiwan, China <<Xingzheng Appeals Act" "and" <Administrative Procedure Law "> provide that:" administrative punishment, is the central or local government agencies of public law decisions on whom the specific event or other public authority measures Foreign direct legal effect of unilateral occurrence of administrative action. "

In China, the specific administrative act as a real titration phrase first appeared in our April 4, 1989 the Seventh National People's Congress adopted the second meeting of the <<>>.<< the Administrative Administrative Procedure Law Procedure>> the provisions of Article 2 is this: the citizens, legal persons or other organizations that the executive and administrative organs of the specific administrative act of violation of their legal rights and interests in accordance with this Law to the people's court. In order to enhance the Administrative Procedure operability, the Supreme Court on May 29, 1991 adopted a <"On the implementation of (the Administrative Procedure Law> Opinions on Some Issues>>, this opinion article 1 of the specific administrative acts made by a legally the definition of effectiveness. that a specific administrative act is the national executive and the executive staff, the organization authorized by laws and regulations, the executive commission of the organizations or individuals in the exercise of administrative functions and management activities, for specific citizens, legal persons or other organizations to certain specific matters, made with respect to the citizens, legal persons or other rights and obligations of the unilateral acts.

Through the above countries and regions visit the concept of a specific administrative act, I believe that: the specific administrative act is the administrative body for specific events on public law, to direct the force of law for the purpose of foreign place, by the various decisions or measures.

(C specific administrative behavior and Administrative Behavior differences

1. Different elements

The fact that the specific administrative acts and administrative acts as acts of public law, both in the main aspects of executive power are entitled to certain organizations or individuals on behalf of the organization for the administrative act. But the objective aspect of their behavior, and legal effect of the There was a significant subjective differences.

First, the objective aspect of the elements are different. The specific administrative act as the actors have demonstrated an objective for the exercise of specific events on public law powers and perform duties. Administrative Behavior, including not only actors in the exercise of powers and duties of the behavior, such as daily construction and maintenance of behaviors, including the exercise of powers and duties related behavior, such as violence, violations. Second, the legal effect of the different elements. the legal effect of the specific administrative act constitutes one of the elements. If an action does not have any legal effect , there is no administrative rights and obligations of parties relative to any impact to the specific administrative act can not be called. Administrative Behavior is a non-legal acts, regardless of whether the corresponding legal effects occur, then do not ask, do not affect the executive fact that behavior exists. Some of Administrative Behavior does not have any legal effect, such as press conferences, and some administrative fact act as a result of factors outside the legal effect of certain indirect occur, such as the virulence of state-owned public facilities, administrative guidance. In other words, the law is not the result element of the constituent elements of Administrative Behavior. Finally, the subjective aspects of the different elements. the specific administrative act is an administrative body will, this will be shown a certain way (usually based on notification way to completion, or the specific administrative act is not established. Administrative Behavior is an administrative body will, but the will is manifested in various ways, does not require a certain way must notify the Chief counterparties. As the chief subject of the will is, how performance is nothing to do with the fact that the composition of behavior.

2. Effectiveness of different

The specific administrative act has the force of law, and Administrative Behavior is not legally binding. The effectiveness of the content of a specific administrative act, including the Public Force in order to pass that to determine the force, binding and execution of four aspects. For example, the public security organs for violation of public security the administrative regulations relative to the parties the decision of administrative punishment, even if the punishment is an offense, before being entitled to revoke authority, the Chief did not resist the relative rights of parties must be complied with the decision. shall be the administrative relative party applications Business Administration issued the permit to the applicant agency, as issuing authority the right business management authorities did not free to withdraw or revoke the issuance of a permit. Administrative Behavior Although the executive is an administrative act, but it does not have The specific administrative acts of the various legal effect. Administrative Behavior although there may be relative to the rights and obligations cause actual impact, but this is due to other factors, such as the specific administrative act is not by virtue of its legal effect as direct relative to the rights and obligations of affected {13}.

3. Behavior of different procedures

Process is physical security of justice. Although China has not developed a unified administrative procedure code, but in some one-way laws and regulations set for the specific administrative acts of the corresponding legal procedures. According to China <<Administrative Review> "and" <Administrative Procedure>> the requirements, procedures specific law is the removal of the statutory grounds for administrative action. Administrative Procedure of the ongoing work, with a unified <<Administrative Procedure Law "> the formulation of procedures for the specific administrative act will be increasingly stringent regulations. and some administrative fact that the specific administrative act is in itself part of the program, the specific administrative act constitutes child sexual act or auxiliary, such as the execution behavior is to achieve a specific administrative act of a program. some administrative fact behavior does not involve procedural issues, such as violence, the executive abuses.

The fact that both civil behavior, or civil legal action, are a direct result of civil legal relations can occur, change or eliminate the behavior difference between the two is the fact that acts of civil objective behavior of the perpetrator, not the perpetrator of the meaning of that The legal effect of the behavior occurred. And the fact that behavior is relative to administrative legal effect outside the specific administrative act, the outside does not have the force of law in order to produce the same effect for the purpose of administration relative to the rights, obligations. by the fact that theories of civil behavior, the specific administrative act theory and the specific administrative act and Administrative Behavior study the differences, we can see the specific administrative act and Administrative Behavior theory and civil law by the civil behavior and theory by the fact that behavior is clearly different. So can not simply use the civil legal action and civil standards by the fact that behavior by the fact that the specific administrative acts and administrative acts.

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Third, the positioning of Administrative Behavior

(A concept of Administrative Behavior

I believe that the Administrative Behavior, is the administrative body to the external does not have legal effect, but in fact may be the rights and obligations of the administrative relative adverse impact of administrative behavior. Specifically, Administrative Behavior has the following characteristics:

First, Administrative Behavior is an administrative act.

The term administrative action, although the same name, but its meaning in different countries. In France, the General said that the executive is the administrative act to produce the legal effect of administrative law, {4} <"German Federal Administrative Procedures Act" > Article 35: "the executive, administrative action to regulate the individual circumstances of the field of public law has taken effect of foreign direct action, decision or other official measures" {14}. In Japan, the term administrative act, not act on language, but the academic scholars and to build the concept of case {15}. Japan theoretical Development of administrative action has, through saying that: "administrative action is administrative activities, direct method in specific situations to have the effect of the administration of power {16}. not difficult to see these countries and regions of administrative actions and the meaning of the meaning of the specific administrative act essentially the same [4]. There is a specific administrative act of the concept, the concept is a legal term, and Germany, Japan and France, the administrative acts meaning the same. In China, administrative action is the concept of a specific administrative act of the upper, administrative behavior and the relationship between the specific administrative act administrative act is equivalent to Taiwan relations and administrative sanctions. So the concept of administrative action inevitable with Germany, Japan, France different, is the administrative body exercising public authority of various acts, including acts of legal acts and facts.

Second, the administrative fact do not have the legal effect of external actions, but would have administrative opposite side of the rights and obligations have been affected.

Administrative body to make specific administrative act, the purpose is that the specific administrative act with the force of law directly to the Executive to set the relative rights and obligations of parties. The Administrative Behavior does not have the force of law, administrative body can not direct the Chief Administrative Behavior relatively square design given the rights and obligations. Although the Administrative Behavior also on the relative rights and obligations of parties have been affected, but the impact is only a matter of fact, in fact, impact, and impact of the results arose because the external force. For example, the Chief guidance on the administrative side relative to the impact of the relative by the Chief Executive guidance on the acceptable side occurred, if the parties do not listen to the Chief Executive relative to the guide, the relative administrative body can not force acceptance. to determine whether the conduct of an administrative fact exist, do not look at the whether the conduct of the executive relative to the rights and obligations of the impact of causing a corresponding, but depends on whether the administrative body in the objective to the corresponding behavior {17}.

Third, the fact that behavior is different from the Chief Administrative Law without any meaningful activity {18}

Administrative Behavior is also an active executive, administrative law is a fact. Therefore, the administrative behavior and the fact that the internal behavior of the executive simply different. Administrative Management Study on the simple administrative activities do not have any legal significance. collected by the file's behavior and general documents collected Xingwei example: the former should be subject to national laws and regulations, such as <"File Law"> on the files to compile the specifications provided, the fact that an administrative act, an act then and up to a management significance, and more from the internal work rules changes, and so can not be called Administrative Behavior.

(B Administrative Behavior extension

Administrative Behavior in the technical, social, ecological and economic rapid Development, so its manifestations vary. Scholars from different angles on Administrative Behavior was classified. Indeed, the fact that behavior can be from different types of angles This article lists only from the formal acts of the fact that some common behavior.

1. Routine construction, maintenance of behavior

This refers to the administrative body set up, operation and maintenance of public institutions, the behavior of public facilities. The Chief of the main implementation and administration of such behavior is not the relative disappearance of direct legal relationship, such as setting up lights, open the road for public use, the establishment of public schools, public water facilities, hospitals fire, felling trees, air quality testing and other acts. Of course, after the establishment of these public institutions in operation in the operation and use of relationships and the people have and can not be attributed to the list of Administrative Behavior.

Is worth noting that the executive authorities in the daily construction, maintenance of behavior violations also belong to Administrative Behavior. To German scholars Maurer's view, such acts include the stability along the highway works on the destruction of buildings, out of federal army tanks road on the hotel's destruction, flood prevention and control measures against the water, where the smell of pollution such as purification facilities {3}. Japan <"State Compensation Law"> Article 2: "As the roads, rivers, and other public settings to create objects or management flawed, bring harm to others, the state or public body liable for the damages. "This is such Administrative Behavior in Japan on the issue of compensation requirements. such acts cause in China compensation for the relevant provisions of civil law, "" State Compensation Law "> not to such acts as Administrative Behavior into the scope of state compensation. In fact, such behavior is also Administrative Behavior, with the State Compensation System, compensation for such acts should be included in the scope of state compensation.

2. The implementation of sex

As the Executive Administrative Behavior sex, refers to "the implementation of specific administrative acts of behavior." One German scholar has pointed out: "the fact that the implementation of behavior, the fact that the administrative act itself, does not contain legal norms are, it is a Regulation for the implementation of power to sanction behavior, in particular the implementation of administrative sanctions, such as approval of the grant monies for the payment behavior of the program to determine the ruling to open the road. "{19} One of Taiwan scholars also point out that : "the fact that the implementation of the act refers to an administrative measures (administrative sanctions, administrative actions plans to fruition." {1} acts on the administrative enforcement can be attributed to Administrative Behavior, in theory, is controversial. Some scholars believe that Administrative Enforcement of behavior is the behavior of a compulsory order, the fact should be an administrative act. But opponents believe that, for the administrative enforcement act, relative to the obligations people have to endure, so that the implementation of the act itself, that is an administrative action of the character { 20}. I believe that the administrative enforcement of the fact that behavior is not an administrative act, because the act has been determined by its mandatory is bound to bear the administrative relative increase in the obligations of parties.

3. Consultation and notification act

Administrative body to provide advice behavior can be divided into two categories: binding, such as administrative authority shall provide administrative opposite side of the application proved to be personnel information and other specific administrative act, the other behavior is not binding, such as the administrative body relative to the requirements of the Chief provides a variety of side information is an administrative fact that the employment behavior {21}.

Communication behavior refers to the so-called executive functions in accordance with its corresponding request issued within a certain range of various information, including warnings, tips, suggestions and other acts. Such behavior is typical administrative guidance [5].

4. Informal administrative action

The so-called "informal administrative action", mainly refers to the executive authorities in the specific administrative act before, in lieu of administrative decisions, the agreement with the people or for other contacts. Informal administrative action, does not have binding force on the administrative law , is the fact that areas of behavior [6]. For example, the relative side to the Chief Executive authority to promote a certain behavior or not a certain behavior, and accept the recommendations of the executive. This behavior is the executive organ, is an informal administrative behavior, he can not commit itself bound, without liability. Of course, scholars have recently suggested that the executive authorities for such acts shall be those of a civil contract, assume responsibility for contracting negligence {22}

5. Violence and violations

<"State Compensation Law"> under the categories of State organs illegal use of force is the Administrative Behavior. For example, the executive authorities of illegal detention or other unlawful deprivation of personal freedom of citizens to assault and other acts of violence or instigating others to beat act results in bodily injury or death of citizens, illegal use of weapons, police equipment causing bodily injury to or death of citizens committed an administrative fact act.

It should be noted that the above classification is the author in order to fully explain the connotation of Administrative Behavior of an attempt made, and the fact that there is no end administrative act, nor the necessary theoretical classification.

Notes:

[1] "Law of Effect" and "means to say," is the author of the civil law scholars on the meaning defined in Administrative Behavior based on the analysis of the summary: "Law of Effect" and the fact that behavior can not claim administrative or can not produce legal effects direct legal effect, "meaning to say," advocated administrative law behavior is the meaning of administrative body, said the fact that behavior is not the Chief Administrative Subject to the principal.

[2] Some scholars believe that the common law of administrative legal acts, the fact that the concept of pragmatic behavior, position, Research the facts of our behavior in the position and methodology have important instructive. We may consider abandoning the abstract concept of Administrative Behavior Analysis through the practice of administrative action to resolve the fact that behavior. I believe that this view is questionable. see Xi-Zn, Tang Shu-Chu: <<Administrative Behavior Recognition> ", in <<Administrative Law Research" "-2001 3 , p. 57 below.

[3] Yan Seoul Po: <<On Administrative Behavior> ", in <<Administrative Law Research" "1998 No. 3. The article mentioned:" Administrative Behavior legal effects of the production does not depend on the administrative body means that but on the law. "essence of the text is from the fact that civil legal acts and acts of civil point of view to talk about the fact that acts and administrative acts of administrative law, I think this is debatable.

[4] Although there are three French sense of the concept of administrative action, but usually the equivalent of administrative acts mentioned in the specific administrative act.

[5] Japan is the world's first system of administrative guidance incorporated into national legislation. Followed by a number of other countries and regions have gradually developed a system of administrative guidance, such as China's Taiwan region.

[6] The German administrative law scholars that the informal administrative act, not subject to legal constraints, the fact that an administrative act. Of course, there are objections, de Professor Luo Mu Winfrey believes that the facts do not belong to an informal administrative activities behavior, but a fact that activities in the informal administrative activities mainly because the executive and the citizens, legal persons or other organizations to exchange views, increase mutual understanding and have no legal significance. See [German] Maurer: << Administrative Law Zonglun>>, Gao Wei, translated, Law Press, 2000, p. 398.

References:

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