Abstract

With the growing socialist market economy and spreading of democracy and the rule of law, protection of human rights has gradually become the primary val-ue in our country. Therefore, how to achieve the goal of protection of human rights in the broader scope has become the primary subject in all law depart-ments.In the field of administrative law, the service administration with its aim at taking care of the people to survive and to live to facilitate intents the protec-tion of human rights in a broader scope and the implementation of the primary value of human rights.So we should strengthen the supervision to the administra-tive behavior.For ensuring the results of the administrative behavior conforming to the legal purpose of administrative behavior, we should supervise not only the results of the administrative behavior, but also the process of the administrative behavior.The fundamental way to achieve these values is to set up and improve the system of administrative law, which needs to mature legal theory.Although the theory of administrative law in China is initially established, but there has been existing the defects and insufficiencies in administrative law theories, espe-cially the establishment of administrative act theory.These defects and insuffi-ciencies in the theory of administrative law is not conducive to the guidance of the administrative judicial practice in function, but to meet the primary value of the realization of human rights in purpose.It is necessary to provide a theoretical support for the administrative law system construction by improving and correc-ting the theory of administrative law, and then to realize the value of administra-tive law.I want to reconstruct the theory of the establishment of administrative act by reflection thorny of the establishment of administrative action, choice of the administrative act factor in the book, in order to provide people with a scien-tific standards to judge the administrative act, to ensure the primary value of hu-man rights and other social value to implement in a much wider range in the field of administrative law.In this book, I employ the methods of value analysis, em-pirical analysis, social analysis and comparative analysis, etc.

The book is divided into eight chapters.

Chapter I is on the relation between the transmutation of the adminis-trative act and the establishment of the administrative act. It is generally believed that the concept of administrative act refers to the administrative organs take measures, directly or indirectly, to produce legal effects according to the law.It is generally believed the primary value of the concept of administrative acts is on the order, and the system is chaotic and lack of certainty and flexibil-ity.With the growing socialist market economy and spreading of democracy and the rule of law, the service administrative began to appear in the laws of our country, protection of human rights has gradually become the primary value in our country.The value of the concept of administrative act in the tradition does not match the rank of the legal value, do not cover the service administrative, and cannot be explained the administrative way in the form.Therefore, the con-cept of administrative act should be more broadly interpreted according to the Chinese judicial practice.The administrative act expanded will be as the protec-tion of human rights to the primary value.The administrative act includes the ad-ministrative legal acts, the administrative factual acts and the quasi-administra-tive（legal）acts.As result, the administrative act expanded form a system of administrative acts with Chinese characteristics.It is necessary to amend the the-ory of establishment the administrative act in order to achieve the coordination of the basic theory with the value rank requirements of the law and judicial practice requirements.

Chapter II is on the dilemma of the theory of the establishment of the administrative act in China. The concept of the establishment of administrative acts should be defined as the fit of the elements of the administrative act.The establishment of administrative act in the nature is a fact judgment.The primary significance of the establishment of administrative act is to determine the admin-istrative property of an act in the real life.But the administrative act is usually abstract, and various form in the real life.Therefore, the scholars have construc-ted the theory of the establishment of the administrative act to break the content of administrative act down into several elements.With these elements, it can be identified the administrative act from the real life.The administrative act determines the elements of administrative act, which means the elements of an admin-istrative act are the property signs to judge an act whether it belong to an admin-istrative act.It is the theory of the administrative act to provide a scientific crite-rion for the people to identify administrative act from the real life.Chinese schol-ars generally consider that the elements of administrative acts'establishment include subject, power, intent and legal effect, and these elements should be available simultaneously in an administrative act.There are many paradoxes in the theory, namely the elements of an administrative act's establishment are not decided by the content of the administrative act, the contents of an administra-tive act are decided by the elements, and the elements of an administrative act are not the sign to determine the administrative act.The paradoxes bring the di-lemma to the theory of the establishment of the administrative act.The current establishment of the administrative act excluded public authority'act by the non-administrative body from the administrative act；The theory cannot explain the ad-ministrative property of the administrative factual act（the unlawful administra-tive act, the damages caused by administrative public property, the administra-tive omission and the administrative enforcement）.They also let the administra-tive property of the administrative contract act be questioned and cannot distin-guish the administrative factual act and the quasi-administrative（legal）acts.For the administrative act in law, it is difficult determine the administrative property of the administrative guidance, administrative plan, administrative promises, administrative notaries acts and administrative registration act.Final-ly, they also exclude the WTO rules'implementation in the field of administra-tive acts.As a result, the theory of the establishment of the administrative act does not fit the requirement of the unity of the administrative act in law and in jurisprudence.It is contrary to the public principle of the“no power without the restrict”，to the public principle of the“no responsibility without the power”.It is not conducive to realize the values of the protection of the human rights, of the rule by law, of the efficiency, etc.

Chapter III is on the reconstruction of the theory of establishment of administrative acts. Reconstruction of the establishment of an administrative act theory must follow certain principles, namely the principle of human rights pro-tection, the scientific principle, unifying principle and the principle that the&nbsp；power and responsibilities should be in line.It is necessary to choose an appro-priate method to reconstruct the theory of the establishment of the administrative act.The method contains value analysis, case analysis, social analysis.I think the reconstruct of the theory should be that the administrative acts are divided in-to general elements and special elements.The administrative power is a general element, namely the core of the elements because it can distinguish the adminis-trative act from the civil act, the criminal act and the constitutional act.The in-tent and the Legal effect are common elements in all acts and are not the distinc-tion between constitutional acts and administrative acts, as well as civil behav-iors.However, the elements of the administrative power in the administration de-termine the nature of the act, while the elements of intent and elements of the le-gal consequences of acts can be classified after the administration of the elements of the establishment of administrative acts, which are special elements.Adminis-trative acts are no longer required to set up a number of factors exist simultane-ously, by the general elements and special elements of random combinations, but should not lack elements of the administrative power.In accordance with the re-established administrative act Theory, the establishment of administrative legal acts should include the elements of the administrative power, the elements of in-tent and the legal effect simultaneously；the establishment of quasi-administrative acts should include the elements of the administrative power and the elements of intent simultaneously；factual behavior in administration should include the ele-ments of the administrative power and the legal result simultaneously.Adminis-trative acts are certainly the acts of administrative subject, which means acts without subject unlikely exist because the fact the administrative act has been set up illustrates the subject already exists.As to whether this subject is an adminis-trative subject, we should confirm that whether the acts involve the factor of the administrative power.It is the administrative act decides the nature of the ad-ministrative subject rather than the administrative subject decides the nature of the administrative act.In short, the administrative subject is not the element of the establishment of an administrative act.

Chapter IV is on the establishment of administrative act and the ad-ministrative subject. The administrative subject has been regarded as one of the elements of administrative act because of meeting the needs of administrative ju-dicial practice, because of the influence of the crime constitution theory and the theory of establishment of civil legal act, because of the confusion between the existence of administrative act and the establishment of administrative act, as well as the confusion between the elements of responsibility and the administra-tive act established condition, because of the Lack of understanding of the spe-cific administrative subject.Beyond that to regard the administrative subject as the established elements of an administrative act because of the influence of the administrative lawbe the controlling law, because of preventing the non—admin-istrative organs from exercising administrative power.This opinion is a logical er-ror in theory, is contrary to the purpose of the existence of administrative sub-ject, to bring confusion to the judicial organs to regard the administrative subject as the established elements of an administrative act.With the decline of the the-ory of subject as an element of legal act establishment, administrative subject is no longer an element.Because that administrative subject is not independent of administrative act, that the administrative nature of administrative subject de-pends on the nature of administrative act, that the nature of administrative act can not be determined by the administrative subject.Administrative subject is the element which takes the responsibility.

Chapter V is on the establishment of administrative act and the ad-ministrative power. It is a common point among chinese and foreign scholars to equate the status of administrative power with equivalent other factors in the es-tablishment of administrative act.The view is difficult to explain the administra-tive nature of administrative act which has been recognized in some judicial prac-tice.The status of administrative power and other factors is different in the estab-lishment of administrative act.The administrative power decides the nature of all factors of administrative act establishment including subject, intent and legal effect.Administrative power can make the administrative act different from other acts of the administrative organization.The administrative power can run through administrative law and administrative jurisprudence.The administrative power is the premise of the realization of the administrative act.The establishment elements of administrative act should include general conditions and special condi-tions, the administrative power is the only one general elements to the adminis-trative act establishment.The administrative power being the only one general el-ements to the administrative act establishment can improves the theory of admin-istrative act, can solve the confusion of administrative judicial practice, can make the administrative law theory and the administrative judicial practice agree-ment.The judge standards of administrative power should include the standard of power, the standard of responsibility, the standard of the antecedent behavior, the standardof administrative contract and thestandardof being not attributable to private rights etc.

Chapter VI is on the establishment of administrative act and declaration of intent. That the declaration of intent is the element of administrative act's establishment is a common point of view among chinese scholars.The declaration of intent has been regarded as one of the elements of administrative act because of the influence of the crime constitution theory, of the theory of estab-lishment of civil legal act and the theory of the german establishment of adminis-trative act.The theory cannot explain the administrative act the administrative attribute cognized in the administrative judicial practice（the unlawful administra-tive act, the damages caused by administrative public property, the administra-tive omission and the administrative enforcement），leading to the chaos in judi-cial practice.The precise meaning of the declaration of intent refers to consistent subject meaning and legal effect of mean, so the declaration of intent in adminis-trative act only the pursuit intent by the laws, regulations and rules.According to the exact meaning, the declaration of intent is not the general elements of the establishment of administrative act in China.It is because that administration le-gal relationship lacks autonomy of mean and the foundation of equal status, that the administrative subject acts in the absence of a space to free choose, that the mean of administrative legal act is contrary to the basic requirements of the rule of autonomy of mean, that the acts of administrative agencies could not always act in line with their means.Therefore, the factor of intent could not determine whether a certain act is an administrative act.On the contrary, the administra-tion nature of the intent is determined by other factors.Although the declaration of intent has not the function to determine the administration nature of an act, it is the special element of certain acts without legal effect—quasi-administrative acts which include administrative guidance, abstract administrative act, administrative planning, administrative commitment, administration notaries act and administrative registration.

Chapter VII is on the establishment of administrative act and the legal consequence. The legal consequence of administrative act refers to the creation, change and extermination of administrative legal rights and obligations relation-ship, with the declaration of the intent of administrative subject, and expected legal protection.Generally, it means the legal consequence of specific adminis-trative act, which includes the increase or decrease of rights and obligations.The legal consequence of administrative act according to different criteria can be classified.Scholars generally argue that the legal effect is the element of the es-tablishment of administrative act, with difference in whether it is the only one el-ement or one of all elements, in China.The legal consequence has been regar-ded as one of the elements of administrative act because of the influence of the crime constitution theory, of the theory of establishment of civil legal act and the theory of the civil law system'establishment of administrative act, to meet the ju-dicial review of administrative action, but to regard the legal consequences as the elements of the establishment of the an administrative act will exclude the quasi-administrative act outside the range of the administrative act, narrow our scope of accepting cases of administrative litigation, deviate from the goal of the adminis-trative judicial practice, be not suitable for Chinese national conditions.It is the administrative power rather than the legal consequence determines the nature of administration of an act；therefore, the legal consequence is not the general ele-ment of administrative act.Although the legal consequence has not the function to identify the nature of administration of an act, it is the element of factual be-havior in administration.In particular, the legal consequence is the special ele-ment of the establishment of the unlawful administrative act, the damages caused by administrative public property, the administrative omission and the adminis-trative enforcement.

Chapter VIII is on influence for the reconstruction of the administra-tive act established to the theory of administrative law. The administrative act expanded should include the administrative legal acts, the administrative fac-tual acts and the quasi-administrative（legal）acts according to the reconstruc-tion of the administrative act established.In accordance with the reestablished administrative act theory, the establishment of administrative legal acts should&nbsp；include the elements of the administrative power, the elements of intent and the legal effect simultaneously；such means the traditional administrative legal acts（including the acts of administrative contracts）；the establishment of quasi-ad-ministrative acts should include the elements of the administrative power and the elements of intent simultaneously；the quasi-administrative acts include the ab-stract administrative act, the administrative plan, administrative guidance, ad-ministrative commitments, administrative inspection admissibility of administra-tive, administrative notices, administrative announcements, administrative con-firmation, administrative notary, administrative registration and riders adminis-trative ac；factual behavior in administration should include the elements of the administrative power and the legal result simultaneously.Such acts include the illegal（criminal）administrative act, administrative omission, administrative en-forcement etc.The fact behavior is different from quasi-administrative behavior.In accordance with the newly built administrative act theory, the time established by the administrative act and effectiveness by the administrative act is different from the time of entry into force and effectiveness of the administrative act.The relative independence of the time established and the effectiveness of the admin-istrative act established is beneficial to ensure the administrative body to exercise of the executive power independently, to limit the administrative main capricious administrative imperious, and to protect the stability of the legal system.

Chapter IX is on influences for the reconstruction of the administra-tive act established to the administrative litigation system. According to the established theory of reconstruction, the administrative include the quasi-admin-istrative acts and the fact behavior, which provides a theoretical basis for the ex-pansion of the scope administrative lawsuit.Accord to the established theory of reconstruction, the legal consequences is the special elements of an administra-tive act, which provides a theoretical basis for China to establish an objective ad-ministrative proceedings.The theory of reconstruction of the administrative act established abolish the administrative body elements, which makes the recogni-tion criteria“who is the Administrative subjects, who is the defendant”in tradi-tional to lose of foundation.According to the nature of the subject is decided by the administrative acts of nature, the defendant recognition criteria in the admin-istrative proceedings should be“who acts, who is the defendant”.The recogni-tion criteria comply with the requirements of the administrative law theory and to overcome the major shortcomings of the criteria to the current administrative liti-gation defendants confirmation rules.

Key words　the establishment of administrative act；the service adminis-trative；the elements of the administrative power；the elements of the administra-tive subject；the elements of the declaration of intent；the elements of the legal act effect