How to understand the concept of administrative counterpart

The external performance of administrative counterpart can be said to be complicated. China's current administrative legislation system is subject to the administrative management system, and the administrative counterpart is also subject to the administrative department's identification. Different departments have different ways to define the administrative counterpart, which can be described as varied, but the theoretical circle has little research on the administrative counterpart and lacks theoretical guidance. For example, it is difficult for law enforcement personnel to correctly analyze the most basic legal issues such as the responsibility ability and legal status of the administrative counterpart, which directly affects the related rights and interests of the administrative counterpart. Therefore, the author tries to define the meaning and identity of the administrative counterpart theoretically.

First, the concept of administrative counterpart

At present, the theoretical circle has different definitions of the concept of administrative counterpart, mainly including the following viewpoints:

First, most scholars believe that the administrative counterpart is the counterpart of the administrative subject, that is, the counterpart of the administrative subject in the administrative legal relationship; The author thinks that this view has the following problems: 1. We can't rule out a possible third party. The administrative legal relationship is not an absolute single relationship between the two sides. There may be a third party who has an interest in the administrative act. This third person is listed as a third person in administrative reconsideration and litigation, but what is its status in administrative law enforcement procedures? If the real estate bureau did not carefully examine and verify, resulting in registration fraud, then what position is the real owner B in this process? 2. In the procedure of administrative punishment, the administrative subject lists the wrong administrative counterpart, and it should be the administrative counterpart, but what is the identity of the person who should be the administrative counterpart but not included? Is he not a relative? Who is the other party? In addition, in practice, this view only describes the administrative counterpart in form, but does not define the administrative counterpart in essence, so it has no guiding role for administrative law enforcement personnel to determine the actual administrative counterpart.

Second, the administrative counterpart is an individual or organization whose rights and interests are affected by the administrative behavior of the administrative subject. According to this view, the administrative counterpart only exists after the administrative act is made, but before the administrative act is made, the administrative counterpart does not exist because there is no influence of the administrative act. Some people also express this view as "the other side of the administrative subject's behavior" So is there no administrative act, that is, there is no relative person? In fact, before the administrative act is made, the administrative counterpart already exists. For example, once an illegal act is committed, the administrative counterpart has already appeared, regardless of the role of the administrative act. In practice, before the administrative subject makes an administrative act, such as in the investigation stage of administrative punishment, the actor, that is, the administrative counterpart of punishment, must be determined first. In addition, what standards and ways to find the target of administrative behavior are the main problems faced by law enforcement personnel. But this definition is unanswerable.

Third, the theory of rights and obligations. Dr. Peking University Fang believes that the administrative counterpart is "a citizen, legal person or other organization that participates in administrative legal relations and enjoys rights or assumes obligations to the administrative subject." This view is scientific in theory, but the concept is too abstract, which is not conducive to the administrative staff to confirm the administrative counterpart in practice. In addition, "participation in administrative legal relationship" means that the administrative legal relationship has been produced, and it is worth discussing whether the administrative counterpart only exists in the existing administrative legal relationship. The administrative legal relationship is based on the legal facts adjusted by the administrative legal norms, and the legal facts have already occurred. Although the corresponding administrative organs have not made any administrative actions or created administrative legal relations, the administrative counterpart already exists. If an illegal act is committed, whether the administrative act is affected or not, the offender is an administrative counterpart. It can be seen that this view has not jumped out of the defects of the above second view.

Because the above definition of administrative counterpart is too formal and abstract, it is impossible to explain how extensive the concept of administrative counterpart is (all of which are limited to the relevant provisions of specific administrative acts in the Administrative Procedure Law). With the development of society and the in-depth study of administrative law, people have a deeper understanding of the concept of rule of law, so it is necessary to re-understand the concept of administrative counterpart. The administrative counterpart is an abstract subject concept in administrative law. Any subject becomes the object of legal norm adjustment, and its prerequisite is that it has certain legal qualifications, that is, it has relevant legal responsibility ability. This is also the basis for determining whether a factual subject becomes the object of legal adjustment in practice. Based on this, the author believes that the so-called administrative counterpart refers to the citizens, legal persons and other organizations that form an interest relationship with the administrative subject based on certain legal events or behaviors and obtain the qualification to participate in administrative legal relations according to administrative legal norms.

Based on the above reasons, the author believes that the administrative counterpart should be understood from three levels:

First of all, the participation of administrative counterpart in administrative legal relations must be based on certain legal events or behaviors. Many people think that the participation of administrative counterpart in administrative legal relations is influenced by administrative behavior. This view is wrong. Starting from the practice of administrative activities, we must realize that administrative actions are to deal with the consequences of existing legal events or actions of administrative counterparts. For example, administrative assistance is assistance to victims of natural disasters or the elderly or patients; Administrative license is the confirmation that the relative person has certain qualifications or abilities; Administrative punishment is a sanction against the illegal behavior of the relative person; Abstract administrative behavior is to regulate the behaviors and relationships of citizens, legal persons and other organizations that already exist in practice. Therefore, before the administrative act is made, the counterpart already exists, not after the administrative act is made, which is a misunderstanding in the field of administrative law research in China and should be corrected. The direct cause of administrative legal relationship is not the administrative behavior of the administrative subject, but the legal events or behaviors related to the administrative counterpart, which are regulated by administrative legal norms. Based on this legal event or behavior, an interest relationship has been formed between the administrative subject and the administrative counterpart. It is based on a certain legal event or behavior, and the administrative counterpart is regulated and bound by the administrative subject according to law, thus forming an administrative legal relationship. Legal events here can be natural or man-made. Acts can be legal or illegal; It can be the behavior made by the administrative subject or the behavior of the administrative counterpart itself.

Second, the administrative counterpart is a citizen, legal person and other organization with legal qualifications. Citizens, legal persons and other organizations are the subjects in social activities and the same carrier of civil subjects and administrative counterparts. As a civil subject, there is no need to make special provisions by law, and rights are the freedom to act or not to act. To become an administrative counterpart, special provisions must be made by administrative legal norms, so that citizens, legal persons and other organizations can exercise their rights according to administrative legal norms; Only citizens, legal persons and other organizations have the obligation to fulfill the obligations that must be undertaken in accordance with administrative regulations. The whole process has mandatory constraints, without any randomness. Therefore, it is legal for the administrative counterpart to participate in administrative activities, and the existence of the administrative counterpart is based on certain qualifications stipulated by administrative laws and regulations. It is different from the general civil subject, which is often defined from the perspective of private rights, while the administrative counterpart is defined from the perspective of public rights.

Third, the administrative counterpart is the confirmation of citizens, legal persons and other organizations who have obtained the qualification to participate in administrative legal relations. Participation in administrative legal relations can be active or passive. However, as an administrative subject, the counterpart must have certain qualifications to participate in administrative legal relations. Because the specific administrative legal relationship is different because of the different administrative departments, the qualifications for participating in administrative legal relations are also different, which must be confirmed according to the administrative law of the corresponding departments. Only citizens, legal persons and other organizations that meet the qualifications of relevant administrative laws and regulations can become administrative counterparts, and on this basis, administrative subjects can make corresponding administrative actions. The administrative counterpart is the confirmation that citizens, legal persons and other organizations have this qualification.

Second, the classification of administrative counterpart.

First, from the object of administrative act, it can be divided into abstract administrative act counterpart and concrete administrative act counterpart. At present, the relative person of abstract administrative act is rarely discussed in the theoretical circle of our country, but there is indeed an administrative relative person in the process of making abstract administrative act. For example, Article 58 of the Legislative Law stipulates that in the process of drafting administrative regulations, opinions of relevant organs, organizations and citizens should be widely listened to. Listening to opinions can take various forms such as symposiums, argumentation meetings and hearings. According to the provisions of this article, organizations and citizens who participate in the discussion, demonstration and hearing of administrative regulations are administrative counterparts. In administrative reconsideration, the party who reconsiders the abstract administrative act is also the administrative counterpart of the abstract administrative act. The biggest feature of abstract administrative behavior relative to people lies in the uncertainty of quantity. Abstract administrative behavior mainly involves the behavior of administrative subjects to formulate normative documents. At present, the judicial interpretation of China's administrative procedure law stipulates that abstract administrative acts cannot be prosecuted separately. In addition, according to Article 7 of the Administrative Reconsideration Law, some abstract administrative acts have also been included in the scope of reconsideration, thus establishing the position of the counterpart of abstract administrative acts in reconsideration. If the parties (administrative counterparts) are not allowed to reconsider or bring a lawsuit, then the administrative organs will become "judges who try their own cases", that is, the administrative organs are both legislative organs and judicial organs, so that the rights and interests of the counterparts can not be protected. The counterpart of a specific administrative act is the counterpart of the administrative subject who makes the specific administrative act, which is of great significance in administrative reconsideration and administrative litigation, and the theory in this respect is quite complete.

Secondly, from the legal consequences, it can be divided into beneficial administrative counterpart and restrictive administrative counterpart. The administrative counterpart refers to the citizens, legal persons and other organizations that the administrative subject gives rights or relieves obligations through an event or behavior. Such as administrative assistance and administrative licensing. Restrictive administrative counterpart refers to citizens, legal persons and other organizations whose rights are deprived or restricted by the administrative subject through an event or behavior. For example, people who are subject to administrative punishment.

Thirdly, from the perspective of the obligations that the administrative subject should perform to the administrative counterpart, it can be divided into ordinary administrative counterpart and specific administrative counterpart. The obligations that the administrative subject should perform to the administrative counterpart can be divided into two categories: one is the universal obligations that should be performed to all citizens, legal persons and other organizations, such as protecting their personal or property safety, including safeguarding public and national interests. At this time, all citizens, legal persons and other organizations are administrative counterparts, called ordinary administrative counterparts; The other is the specific obligations that citizens, legal persons and other organizations with specific identities should perform. At this time, only citizens, legal persons and other organizations with specific identities are administrative counterparts, which are called specific administrative counterparts. This division is of great significance for breaking through the scope of accepting cases in administrative litigation in China.

At present, China's administrative litigation is generally limited to a specific administrative counterpart. According to Article 2 of the Administrative Procedure Law, "citizens, legal persons or other organizations have the right to bring a lawsuit to the people's court in accordance with this law if they think that the specific administrative acts of administrative organs and their staff infringe upon their legitimate rights and interests." As the plaintiff of administrative litigation, the litigation must be based on the specific administrative act, that is, the specific administrative counterpart, and generally has no right to appeal to the ordinary administrative counterpart. However, there are a large number of public interest litigation in China. For example, Zhang Xin and Yan of Urumqi sued three local hotels for illegally flying the national flag, arguing that these hotels violated the National Flag Law by flying the national flag parallel to the store flag. The actions of three young people to defend the sacred status of the national flag aroused widespread concern, but the court dismissed the lawsuit on the grounds that they were not qualified to sue. Shen, a company in Tongxiang City, Zhejiang Province, reported that it was suspected of tax evasion, and later thought that the tax authorities had failed to investigate and deal with it, and took Tongxiang State Taxation Bureau to court for "failing to perform its statutory duties", and the result was rejected; The citizens of Jiaojiang District, Taizhou City, Zhejiang Province, strictly discovered that a local "entertainment place" had pornographic performances. After repeatedly failing to report to the relevant departments, he angrily pushed the Jiaojiang District Cultural and Sports Bureau of Taizhou City to the dock, demanding that the defendant's failure to perform his statutory duties was an administrative omission, and ordered him to reply within a time limit and investigate the real-name reports and accusations, which also lost the case.

The above-mentioned cases often occur because the administrative subject fails to perform universal obligations, which damages public interests and national interests, but does not directly harm specific individuals (citizens, legal persons and other organizations), but individuals bring administrative proceedings. The main reason for the court's rejection is that the defendant's behavior did not directly infringe the plaintiff's personal legitimate interests, nor did it actually affect the plaintiff's personal rights and obligations. Although the defendant's behavior may have harmed the public interest or the national interest, the public interest and the national interest are not personal interests. Because the defendant did not take specific administrative actions against the plaintiff in the above cases, ordinary citizens have no right to sue. The court's practice conforms to the existing provisions of the Administrative Procedure Law. However, some people think that national interests and social public interests are the embodiment of the overall interests of all citizens, the combination of individual interests of all citizens and the common interests of all citizens. Therefore, every citizen is one of the subjects of rights. When the national interests and social interests are infringed, the personal rights and interests of every citizen are also harmed. In this case, individual citizens should have the right to exercise the right of claim according to the provisions of the Constitution and the general principles of the civil law, protect their own interests, and thus safeguard public interests. Therefore, the administrative procedure law should give the ordinary administrative counterpart a broad right of appeal, or authorize a specific organ (such as the procuratorate) to exercise the right of appeal on behalf of the state and society, so as to improve the protection of the administrative counterpart.

Thirdly, the characteristics and identification of the administrative counterpart.

First, except for some beneficial administrative counterparts who are not limited by their capacity for civil liability, other administrative counterparts, especially limited administrative counterparts, must have full capacity for civil conduct. The administrative responsibility ability of the administrative counterpart is based on the civil responsibility ability, and the ability to undertake administrative responsibility must generally have full civil responsibility ability, except for some beneficial administrative counterparts, including some administrative counterparts in education administration, administrative confirmation, administrative assistance, administrative licensing and administrative reconsideration. If the newborn baby does not have civil capacity, it is the administrative counterpart of birth registration in the household registration management system (although it is completed by its guardian); The branch of a legal person does not have full capacity for civil conduct, but the legal person to which it belongs has obtained the business qualification after being registered and obtained the business license according to law. However, other administrative counterparts, especially restricted administrative counterparts, must have full capacity for civil conduct when taking responsibility in administrative law. At this time, the administrative responsibility capacity and civil responsibility capacity are basically the same. For example, Article 25 of the Administrative Punishment Law stipulates: "If a person under the age of 14 commits an illegal act, he shall not be given administrative punishment and his guardian shall be ordered to discipline him; If a person who is over 14 years old but under 18 years old commits an illegal act, he shall be given a lighter or mitigated administrative punishment. " Article 26 stipulates: "If a mental patient commits an illegal act when he can't identify or control his own behavior, he will not be given administrative punishment." However, the State Administration for Industry and Commerce stated in its reply No.233. 1999 on the identification of the subject of illegal acts, it is believed that the branch of a legal person can become an administrative counterpart although it does not have the capacity for civil liability. I think the legality of this document is debatable. The behavior of a branch of a legal person is generally decided and implemented by the legal person. Branches only carry out orders and only play the role of "agents" and "handlers". They generally have no independent funds, no capacity for civil liability, and cannot bear the responsibility for administrative violations. Only legal persons can bear the responsibility. If the Industrial and Commercial Bureau revokes the business license of a branch, it will deprive the legal person of the right to set up a branch, and the legal person shall bear the responsibility. Some law enforcement officers have stipulated in Article 3 of the Administrative Punishment Law: "If a citizen, legal person or other organization violates the administrative order and should be given administrative punishment according to this law, it shall be stipulated by laws, regulations or rules, and the administrative organ shall implement it according to the procedures stipulated in this law." On this basis, this paper holds that this branch belongs to "other organizations". However, legal persons and their branches are subordinate, and the "legal persons or other organizations" stipulated in this article are juxtaposed, so this view is wrong. Article 3 of the Administrative Punishment Law requires that the object of punishment must be a subject with administrative responsibility, but does not list branches as the object of punishment. Moreover, the administrative punishment law belongs to the law, and the power of interpretation lies with the National People's Congress, and the State Administration for Industry and Commerce has no power of interpretation. It can be seen that the reply given by the State Administration for Industry and Commerce has no legal basis and belongs to ultra vires behavior.

Second, the realization of the rights and obligations of the administrative counterpart depends on the making of the administrative act. The rights and obligations of civil subjects can be realized through their own actions, while the rights and obligations of administrative counterparts need to be realized through the administrative actions of administrative subjects. For example, Article 29 of the Administrative Punishment Law stipulates: "If an illegal act is not discovered within two years, no administrative punishment will be imposed." Assuming that the illegal act has not been discovered within two years, the administrative counterpart can be exempted from the responsibility of administrative punishment; If found within two years, the administrative counterpart will be subject to administrative punishment. The responsibility of the administrative counterpart depends entirely on the administrative behavior of the administrative organ, and its rights are no exception, such as administrative license and administrative assistance. After the administrative act is made, the administrative rights of the administrative counterpart can be truly realized.

Third, the relative person is the management object of the administrative subject. At this time, the legal status of administrative counterpart and administrative subject is not equal. For the needs of public management, the activities of the administrative counterpart are restricted by the administrative subject, some of which are mandatory, such as administrative punishment; Some do not have administrative guidance and administrative contracts. The legal status of administrative counterpart has stages. When a certain legal fact of citizens, legal persons and other organizations adjusted by administrative legal norms is realized, the administrative counterpart comes into being. When the administrative subject actively makes administrative actions or negative omissions, the administrative counterpart participates in the administrative legal relationship and obtains relevant legal status. When the administrative act has the final legal effect (for example, it takes effect after administrative reconsideration or the administrative counterpart acquires rights and performs obligations), the legal status of the administrative counterpart terminates. The legal status of administrative counterpart does not include the legal status in administrative litigation. But this does not prevent them from having the right of appeal. After the administrative counterpart enters the administrative litigation, its administrative counterpart status naturally loses, and it becomes the plaintiff and the administrative subject becomes the defendant in the administrative litigation, and their legal status tends to be equal.

conclusion

In the study of administrative law, administrative counterpart and administrative subject, as a pair of basic categories, have the same important position. We can't favour one over the other. Exploring the scientific concept of administrative counterpart is helpful to improve the administrative rule of law in China, improve the understanding of administrative law enforcement personnel and ensure the accuracy of administrative law enforcement; At the same time, it will also promote the development and perfection of China's administrative litigation system.