The difference between administrative legitimacy and administrative rationality

Administrative legitimacy refers to "the law takes precedence and the law is reserved". The so-called legal priority means that the law has provisions, and administrative law enforcement organs or administrative law enforcement personnel must exercise their duties and cannot waive their powers. The so-called legal reservation means that the law does not provide for powers, and administrative law enforcement organs or administrative law enforcement personnel cannot do it.

Administrative reasonableness means "fair and equitable treatment; Consider relevant factors and exclude irrelevant factors; in accordance with the principle of proportionality". Fairness means that different parties to the same act should have the same result. Impartiality means that the parties should be treated as they should have been dealt with, neither seriously nor lightly.

Considering relevant factors and excluding irrelevant factors means that administrative law enforcement agencies or administrative law enforcement personnel should consider the actual relevant factors at the time when enforcing the law, and absolutely do not consider irrelevant factors. For example: "At that time, the illegal parking was because I was going to send the patient to the hospital for rescue", "The punishment of the beautiful female party was lighter, and the punishment of the rich boss was heavier!!

Complying with the principle of proportionality generally refers to the measures taken or the results of the treatment being commensurate with the degree of the parties' conduct. For example, "food that does not meet health standards should be immediately seized and sealed", "food sold by small vendors, although it is operated without a license, tax evasion, and occupation of roads affects traffic, it will be warned and responsible for stopping sales, and then punished if it is not obeyed" Here is a little bit of dragonflies, and you can write a **!!

The principle of administrative legitimacy means that the exercise of administrative power must be in accordance with and in accordance with the law. It is mainly embodied within the scope of the law, and is exercised in accordance with the procedures prescribed by law. The principle of administrative rationality means that the content of administrative acts should be objective, appropriate and rational.

In short, under the premise of the principle of legality, administrative acts should also be subject to equal and fair application of laws and norms on the basis of comprehensive consideration of relevant factors. Keyun Network Keyun Lawyer Group.

Legal analysis: the difference between administrative legal acts and administrative factual acts: 1. Administrative legal acts are the acts of administrative subjects exercising administrative power and producing legal effects to achieve the purpose of state administration; An administrative factual act is an act carried out by an administrative act for the purpose of influencing or changing a factual state without the purpose of achieving a specific legal effect; 2. Administrative factual acts are manifested as an objective state, and such acts cannot be revoked or changed by the competent authorities like specific administrative legal acts, and there is no problem of taking effect; 3. Administrative legal acts, referred to as administrative acts, refer to the acts of exercising administrative power and producing legal effects to achieve the purpose of state administration; Administrative factual acts are directly manifested in the actions of the subject, and have a direct effect on the outside world with such actions, such as the demolition of houses, personal restraints, and the destruction of property.

Legal basis: "Administrative Litigation Law of the People's Republic of China" Article 2: Citizens, legal persons, or other organizations that believe that the administrative acts of administrative organs and their staff infringe upon their lawful rights and interests have the right to file a lawsuit in the people's courts in accordance with this Law. "Administrative acts" as used in the preceding paragraph includes administrative acts taken by organizations authorized by laws, regulations, or rules.

1. Content. The basic contents of the principle of administrative rationality are mainly the following three:

First, legitimacy. That is, the administrative acts taken by the administrative subject must be subjectively motivated by legitimate motives and objectively conform to legitimate purposes.

Second, balance. That is to say, when an administrative entity chooses to take a certain administrative act, it must pay attention to the balance between rights and obligations, between the damage suffered by the individual and the interests obtained by the society, and between the interests of the individual and the collective interests of the state.

Third, rationality. That is, when an administrative entity makes an administrative act, it must conform to objective laws and be reasonable. The administrative counterpart cannot be required to undertake obligations that it cannot perform or that are unreasonable.

2. Scope. The scope of application of the principle of administrative reasonableness mainly involves the following aspects.

1. Legal administration. That is, the principle of administrative reasonableness should be embodied in legitimate administrative acts. In other words, on the premise that administrative acts are lawful, the principle of reasonableness should and must be implemented.

If an administrative act is not legitimate, the principle of the reasonableness of an administrative act cannot be discussed. Still less can we emphasize the principle of rationality of administrative acts without regard to the legality of administrative acts. Reasonable refers to reasonableness within the scope of law.

2. Specific administrative acts and abstract administrative acts. The principle of administrative reasonableness is applicable to both specific and abstract administrative acts, according to the characteristics of its establishment. This is because not only specific administrative acts must be reasonable, but also the laws and regulations enacted, including administrative decisions and orders that are generally binding, must also be reasonable.

3. Pure administrative field. The principle of administrative reasonableness is only applicable to the administrative field, that is, it can only be embodied in lawful administrative acts. And this principle applies only to acts that fall within the scope of administrative discretion.

The principle of reasonableness does not apply to the conduct of judicial subjects. Special attention should be paid to this.

4. Entities and Procedures. Administrative law is divided into administrative substantive law and administrative procedure law, which are two aspects of the administrative law system. The principle of administrative reasonableness is not only a principle of administrative substantive law, but also a principle of administrative procedure law.

5. Administrative and judicial review. From the perspective of legal remedies in the legal register, discretionary administrative acts are subject to administrative review and judicial review. For administrative abuse of power that causes obviously unfair results, Article 54 (4) of the Administrative Procedure Law stipulates:

Where the administrative punishment is clearly unfair, the judgment may be modified. "The so-called determination of obvious impartiality relies on the principle of administrative reasonableness.

Legal Analysis: Administrative regulations shall be implemented in accordance with the Party's line, principles, policies, and decision-making arrangements, in accordance with the provisions of the Constitution and laws, and in accordance with the legislative principles determined by the Legislation Law.

Legal basis: Article 3 of the "Regulations on the Procedure for the Formulation of Administrative Regulations" The formulation of administrative regulations shall implement the Party's line, principles, policies, and decision-making arrangements, conform to the provisions of the Constitution and laws, and follow the legislative principles determined by the Legislation Law.

The differences between administrative factual acts and administrative legal acts are as follows:

1. Administrative legal acts are the acts of administrative entities exercising administrative power and producing legal effects to achieve the purpose of state administration, such as administrative punishments.

An administrative factual act is an act carried out by an administrative act for the purpose of influencing or changing a factual state without the purpose of achieving a specific legal effect; The act of an administrative organ disclosing ** information and providing information or intelligence information in accordance with the law is a typical act of administrative fact.

2. Administrative factual acts are manifested as an objective state. Once an administrative factual act is made, it is manifested as an objective existence, and the consequences of the act are actual and cannot be restored to the state before the act; Such acts cannot be revoked or modified by the competent authorities in the same way as specific administrative legal acts, and there is no question of their effectiveness.

3. Administrative juristic acts are referred to as administrative acts, which are commensurate with civil juristic acts. It refers to the act of exercising administrative power to produce legal effects to achieve the purpose of state administration. The practice of selling in administrative affairs is directly manifested as the action of the subject, and this kind of action has a direct effect on the outside world, causing physical or physiological changes, such as the demolition of houses, personal restraints, destruction of property, etc.

On administrative factual acts and administrative legal acts

Administrative legal acts refer to the acts of administrative entities exercising administrative power to produce legal effects to achieve the purpose of state administration. That is, it can form a relationship of rights and obligations in politics and law.

Administrative factual acts refer to the statutory administrative legal effects directly produced by administrative entities in the process of exercising administrative powers, and this act is not influenced by the subjective intentions of administrative subjects, such as the law enforcement personnel of administrative organs in the process of forcibly demolishing illegal buildings, damaging the legal property in the building, which is an administrative factual act.

The consequences of the act are real and cannot be restored to the state before the act, and such acts cannot be revoked or modified by the competent authorities like specific administrative acts, and there is no question of their effectiveness.