2. Legal relationship consists of subject, object and content. Subject refers to the parties who enjoy rights and assume obligations in administrative legal relations. Object refers to the object pointed by the rights and obligations of the parties in the administrative legal relationship; Content refers to the rights and obligations enjoyed.
The identification of administrative legal relationship must first be the legal relationship with administrative law enforcement units, and then there is content, resulting in the relationship between rights and obligations.
What are the criteria for judging whether a legal relationship is an administrative legal relationship? Looking at the subject, the subject is the most critical difference. In civil legal relations, the plaintiff can only be the administrative counterpart, and the defendant can only be the administrative subject, not the original defendant. .
On the criterion of administrative legal relationship (1) administrative subject 1? The concept of administrative subject refers to an organization that enjoys state administrative power, can exercise administrative power in its own name, and can independently bear the corresponding legal responsibilities arising therefrom.
(1) The administrative subject is an organization that enjoys state administrative power; (2) The administrative subject is an organization that can exercise administrative power in its own name; (3) The administrative subject is an organization that can bear legal responsibilities independently.
2? The authority and responsibility of the administrative subject (1) The administrative authority is the transformation form of the state administrative power and the qualification and power of the administrative subject to implement the state administrative activities. Administrative authority can generally be divided into two categories: inherent authority and entrusted authority. The former comes into being with the establishment of administrative subject and disappears with the elimination of administrative subject; The latter comes from laws, regulations or authorized actions of competent departments.
The administrative authority generally includes the following contents:
(1) Executive legislative power. The so-called administrative legislative power means that the administrative subject has the right to formulate and issue administrative regulations and rules according to the provisions of the Constitution and laws.
② Administrative decision-making power. The administrative subject has the right to make decisions on major administrative matters within its jurisdiction according to law.
③ Administrative decision-making power. The power of administrative decision-making includes the power of administrative subjects to handle specific matters in administrative management according to law, and the power to stipulate matters that are not clearly stipulated by laws, administrative regulations and rules.
(4) administrative command. Administrative command refers to the fact that in the process of state administration, the administrative subject requires a specific person or an unspecified person to do or not do something according to law through written or oral administrative decisions, and the other party must obey.
5 execution. That is, the administrative subject has the power to carry out administrative affairs within its jurisdiction according to the provisions of relevant laws, regulations and rules or the decisions and orders of the higher authorities.
⑥ Power of administrative punishment (power of administrative punishment). That is, the administrative subject has the right to impose legal sanctions such as punishment on the administrative counterpart (including some acts that fail to perform obligations according to law) who violates relevant legal norms within its jurisdiction.
⑦ Administrative coercive power. That is, in the process of administrative management, when the legal obligor or the obligor with a specific administrative legal relationship fails to perform his obligations according to law, the administrative subject takes legal compulsory measures to urge the legal obligor to perform his legal obligations or obtain the same power as performing his obligations.
(8) Administrative judicial power. That is, the administrative subject, as the third party of the dispute, has the power to mediate, arbitrate, decide and reconsider the dispute between the two parties.
The right of administrative mediation refers to the power of the state administrative organs to persuade the two parties to reach an agreement through persuasion and education on the basis of national policies and laws, so as to resolve disputes.
The power of administrative arbitration refers to the power of a specific administrative arbitration institution established by an administrative organ to arbitrate a specific civil or economic dispute between the two parties in accordance with the arbitration procedure.
The power of administrative adjudication refers to the power of administrative organs authorized by law to examine and make decisions on civil disputes between parties closely related to administrative activities and unrelated to contracts. The object of administrative adjudication is specific civil disputes, such as ownership disputes, infringement disputes and damages disputes, rather than administrative disputes. The subject of exercising the power of administrative adjudication can only be an administrative organ or a statutory administrative institution.
The right of administrative reconsideration refers to the power of administrative organs to examine and examine specific administrative acts according to the application of the relative person and legal procedures. According to the right of administrative reconsideration, the object of administrative reconsideration can only be the administrative dispute between the administrative subject and the administrative counterpart. Under normal circumstances, administrative reconsideration can only be exercised by the administrative organ at the next higher level.
(2) Advantages of administrative functions and powers Administrative functions and powers have advantages, that is, administrative subjects enjoy certain administrative priorities and administrative interests when exercising administrative functions and powers according to law. The combination of administrative priority and administrative beneficial right constitutes administrative priority. The right of administrative advantage is the qualification that the state endows the administrative subject with various professional or material advantages in the form of laws and regulations in order to ensure that the administrative subject can effectively exercise its functions and powers, earnestly perform its duties and smoothly realize public interests. Positional advantages belong to administrative priority, while material advantages belong to administrative beneficial right.
The so-called administrative priority refers to the priority given to the administrative subject by the state to ensure the effective exercise of administrative functions and powers, that is, when the administrative power meets the rights of other social organizations and individual citizens in the same field or within the same scope, the administrative power has the effect of giving priority to the exercise and realization. The contents of administrative priority mainly include the following aspects:
(1) First disposal right.
In modern countries ruled by law, the principle of administration according to law has been widely established, and administrative subjects must follow legal procedures in exercising administrative power and implementing administrative acts.
(2) The right to social assistance.
The administrative subject enjoys the right of social assistance, that is, when the administrative subject is engaged in emergency official duties, the relevant organizations or individuals have a mandatory obligation to assist in execution or provide convenience, and those who violate it will bear legal responsibility.
③ Presumptive effect of administrative act (public power).
In order to ensure the stability and continuity of administrative order, administrative legal norms recognize that administrative acts have public power. That is, once an administrative act is made, as long as it is not officially revoked by the competent authority, it is presumed to be valid even if it is illegal or improper. During administrative reconsideration and administrative litigation, as long as there are no special provisions in the law, in principle, the execution of administrative acts will not be stopped.
The establishment of administrative priority must meet the following four conditions:
Answer? The subject must be the administrative subject. Not applicable to individuals or other organizations.
b？ The administrative subject must exercise its functions and powers and engage in public affairs. It does not apply to other activities of the administrative subject.
c？ Must be for management purposes. Not all official activities can exercise priority.
d？ There must be a legal basis.
The so-called administrative benefit right means that the administrative subject enjoys all kinds of material benefits provided by the state. In order to ensure that administrative subjects can effectively exercise their administrative powers and maintain administrative order, the state provides various material conditions for administrative subjects, such as financial funds, office conditions, transportation and so on.
(III) Administrative Duties ① Definition of Administrative Duties Modern democratic politics is based on responsibility. As the holder of administrative power, the administrative subject must undertake certain obligations in the process of exercising administrative power according to law, so as to be responsible to the people and the country who have given it power.
Administrative responsibility refers to the legal obligation that the administrative subject must undertake in the process of exercising the administrative power entrusted by the state and implementing the administrative activities of the state.
(2) the relationship between administrative duties and administrative power. Administrative responsibilities change with the emergence, change or cancellation of administrative power. Any administrative subject with administrative authority enjoys administrative priority and must perform administrative duties. In other words, administrative authority and administrative responsibility are the concrete embodiment of the rights and obligations of administrative subjects, which are dialectical unity and inseparable.
(3) Contents of administrative duties First, perform duties according to law and abide by the provisions of authority. The functions and powers enjoyed by the administrative subject must be clearly defined by legal norms, and the administrative subject must perform its duties within the scope of legal authority in accordance with legal functions and powers.
Second, it meets the statutory purpose. All administrative activities of the administrative subject must be carried out within the scope prescribed by law, must meet the statutory purpose, follow the reasonable and appropriate principles, and avoid the interference of irrelevant factors.
Third, follow legal procedures. With the continuous development of democracy and legal system construction, the concept of openness and justice is deeply rooted in the hearts of the people. All administrative activities in modern countries must strictly follow legal procedures to ensure that the procedures are legal and reasonable.
(4) Administrative authority Administrative authority refers to the scope or boundary that the administrative subject can't cross when exercising the functions and powers prescribed by law. In other words, administrative authority is the limit of administrative power. If the administrative subject exercises its functions and powers beyond this "limit", it constitutes administrative ultra vires and is deemed invalid.
Administrative authority is mostly stipulated by laws (especially organization laws). In the absence of legal basis, it can be inferred according to the principles of administrative law.
Management authority can be divided into vertical and horizontal categories.
Vertical administrative authority refers to the division of the scope of power exercise between lower administrative subjects.
Horizontal authority refers to the division of the scope of power exercise between administrative subjects without affiliation. This kind of authority can be divided into regional authority and official authority.
3? Administrative subject and other related concepts (1) Administrative subjects and administrative bodies can only be state administrative organs and authorized organizations. Because only administrative organs and authorized organizations can enjoy the administrative power of the state, engage in administrative activities in their own names, and independently bear the legal responsibilities arising therefrom.
The state administrative organ, also known as the state administrative organ, refers to the state organ established by the state according to its ruling will, which enjoys and uses the state administrative power according to law and is responsible for organizing, managing, supervising and guiding the state administrative affairs. According to this definition, the state administrative organ must be the administrative subject, and it is the most important administrative subject. However, the administrative organ is an objective social phenomenon, which can be the subject of administrative legal relationship or civil legal relationship. In the administrative legal relationship, the administrative organ can be the administrative subject or the administrative counterpart.
The administrative organ is not equal to the administrative subject. In addition to administrative organs, some administrative institutions and other social organizations can also become administrative subjects according to legal authorization.
(2) Administrative subject and civil servant The administrative subject and civil servant are closely related and inseparable, but we can't treat them this way.
Civil servants are not administrative subjects, and administrative activities are carried out by thousands of civil servants in Qian Qian on behalf of the administrative subjects. Administrative subject and civil servant are a group of closely related and inseparable concepts with different properties.
4? The significance of establishing the concept of administrative subject can be understood from the following four aspects:
(1) is the need of administration according to law. The administrative department may harm the legitimate rights and interests of the other party when organizing and managing social and economic life, so it is required that the administrative department must administer according to law. Administration according to law not only requires administrative departments to exercise administrative power in accordance with laws and regulations, but also requires administrative departments to bear the corresponding legal consequences caused by their actions. To bear the legal consequences, we must clarify the subject. If the subject is not clear, it is inevitable that the rights and responsibilities are unclear and it is impossible to take responsibility. Therefore, administration according to law first requires the determination of administrative subject qualifications for complex and diverse administrative departments.
(2) To determine whether the actions of administrative organs and other organizations belong to administrative actions and whether they have the effectiveness of administrative actions, it is necessary to determine the effectiveness of administrative actions. One of the criteria is to determine whether administrative organs and other organizations have the qualification of administrative subject. The behavior of administrative organs and organizations that do not have the qualification of administrative subject does not belong to administrative behavior, has no effect of administrative behavior, or is an invalid administrative behavior.
(3) Determining the needs of defendants in administrative litigation In order to file an administrative lawsuit and request judicial relief, we must first determine whether administrative organs and other organizations can become defendants in administrative litigation, and which organs or organizations should become defendants when filing an administrative lawsuit against the entrusted organizations or individuals. This requires us to determine whether administrative organs and organizations have administrative subject qualifications.
(4) It is necessary to ensure the continuity and unity of administrative activities. The principle of administration according to law requires the existence of an administrative subject, which unifies the actions of many different civil servants and bears the legal consequences caused by the actions of various civil servants.
(II) Administrative counterpart The administrative counterpart is the subject in the administrative legal relationship. State organs, including administrative organs, citizens, legal persons or other organizations, foreigners, stateless persons and foreign organizations can participate in administrative legal relations as administrative counterparts, enjoy certain rights and undertake certain obligations. However, the administrative subject can only be the holder and exerciser of the state administrative power, and the person who bears the corresponding legal responsibility for it. Citizens, legal persons or other organizations cannot participate in administrative legal relations as administrative subjects under normal circumstances.
In traditional administrative law, the administrative subject is emphasized, while the rights and obligations of the counterpart are not fully discussed, or only their obligations are emphasized and their initiative is ignored. With the improvement of administrative awareness of the rule of law and democratic participation, the position and role of the counterpart has been increasingly concerned, and the analysis of the rights and obligations of the administrative counterpart has also become an important topic in modern administrative law.
To judge right or wrong, please write down the reason for the mistake: the change of administrative legal relationship is mainly the change of administrative legal relationship. Yes, the three elements of legal relationship are subject, object and content.
Any change is a change.
However, I hope you will notice that our laws sometimes adopt the narrow concept of change, that is, only when the content has changed can it be recognized as change.
The concept of administrative legal relationship refers to the legal relationship between the subject of administrative power and other organs and administrative counterparts, which is formed by the establishment and exercise of administrative power and the supervision of the exercise of administrative power.
Administrative legal relationship is the result of administrative law adjusting administrative relationship, and its scope is smaller than administrative relationship.
See page 588 of Law Volume of Encyclopedia of China.
Characteristics of administrative legal relationship Apart from the common characteristics of general legal relations, administrative legal relations also have the following characteristics: First, one of the subjects of administrative legal relations must be the state administrative organs. Second, the subjects of administrative legal relationship are unequal in the process of administrative activities. When the administrative counterpart fails to perform the obligations stipulated in the administrative law, the administrative organ may force him to perform; When the administrative organ fails to perform its obligations, the counterpart can only ask it to perform or appeal to the state organ to perform or bring a lawsuit to the people's court according to the procedures stipulated in the Administrative Procedure Law. Third, the rights and obligations of the subject of administrative legal relationship are stipulated in advance by administrative law, and the subject of administrative legal relationship has no room for free choice. Fourthly, the administrative legal relationship arises from or is related to the exercise of management functions by state administrative organs.
Characteristics of administrative legal relationship;
1, constancy and untransferability of subject:
(1) One of the two sides of an administrative legal relationship must be an administrative subject, and a legal relationship without an administrative subject as one side cannot be an administrative legal relationship.
(2) In the administrative legal relationship, the administrative subject cannot be replaced by another party, and their respective positions and legal functions are determined. In the administrative litigation relationship in China, the plaintiff can only be the administrative counterpart, and the defendant can only be the administrative subject, and they can't be the original defendant.
2. Subject qualification is restricted:
In the administrative legal relationship, both the administrative subject and the administrative counterpart are bound by certain qualifications and conditions.
3. The main position is "inequality under equality"
The specific performance is as follows:
(1) The rights and obligations of both parties are not exactly the same.
(2) The number of rights and obligations of both parties cannot be equal, and one party has rights and obligations that the other party does not.
The main difference between administrative legal relationship and civil legal relationship is that one of the two parties in administrative legal relationship is an administrative unit, while civil legal relationship is not. Moreover, if the administrative legal relationship is controversial, it must be the administrative behavior of the administrative unit.
The difference between civil legal relationship and administrative legal relationship is mainly the difference of subjects. Administrative legal relationship is the relationship between unequal subjects, and civil legal relationship is the legal relationship between equal subjects. The connection is that the proceedings are basically the same.