In the field of administrative law, there is the meaning of the constitution principle of the supremacy of Parliament, the principle of the rule of law, and on the basis of the formation of ultra vires principle, rationality principle, the principle of procedural justice. One of the "ultra vires principle" is the core principle of British administrative law, but also the theoretical basis of ordinary court for judicial review of administrative acts, all the contents of British administrative law around the principle, the administrative law system is based on the principle of.
An overview of the principles of ultra vires, UK
(a) the concept of ultra vires principle
Ultra vires, refers to the administrative power must be exercised in accordance with the law, beyond the legal authorized administrative act is invalid. If the action of the administrative authority beyond the legal authority is illegal and may be identified by the court is invalid, it is recognized that the subsidiary organs of public power, but requires the exercise of any power must be in the authority of the authority. Ultra vires is a large category, including two aspects of substance and procedure of ultra vires ultra vires, beyond the jurisdiction, including unauthorized substance abuse of power, does not fulfill the statutory obligations and recorded in error of law (also known as the "the surface error"), and procedures including the violation of the principle of natural justice and authority in violation of legal procedure principle.
(two) the basic principle of ultra vires
One is ultra vires the ideological basis of the principle originated from the concept of natural law and legal positivism. The concept of natural law confirms and protects the natural rights of people. It is believed that the government can only protect people's rights and restrict the government power and ensure the people's sovereignty. There is no doubt that has an important influence on the emergence and development of ultra vires the concept of natural law and legal positivism.
Two is the ultra vires principle of constitutional basis, is the principle of parliamentary sovereignty and the principle of rule of law. In the UK, the sovereignty of Parliament and the principle of the rule of law are very important, together form the basis of administrative law. The principle of the sovereignty of Parliament requires that the government should obey the law of the parliament. Since the Supreme Court law is in the highest order, the court must be executed, so that the executive authorities must exercise the authority within the scope of the statutory authority, if the administrative organ's action beyond the scope of statutory authority, the court may declare null or void.
The three is ultra vires principle had profound social reason. On the one hand, it is the parliament in order to control the huge executive power. In seventeenth Century, the constitutional system and the power of the British government in the pattern with the bourgeois revolution, a great change, Parliament replaced the king made the highest power of the state. The development of free economy promotes the prosperity of the society, and also brings a series of social problems. In order to cope with a variety of complex social problems, the parliament is widely authorized to the administrative organs, the administrative organs of the functions from the traditional foreign, tax expansion to education, health and other fields, the administrative agencies gradually large, administrative power is also growing. On the other hand, the increase in the appointment of the legislature. In 1920, all kinds of administrative laws and regulations of the United Kingdom reached 5 times as much as that of the legislature. After the Second World War, Britain entered into the so-called welfare state, the government's duty is more extensive, the formation of a peak of the appointment of legislation, the national policy has also been almost no repeal of these laws, although the appointment of the Legislative Council is authorized, but it is difficult to effectively control the legislative council.
Two, the development process of ultra vires principle
In the history of the development of ultra vires principle, has milepost meaning is "1969 annese Minich Co. v. foreign compensation commission case, the facts of the case: anness Minich is a British company in Egypt, the Suez Canal Crisis in 1956 when the company was on the Egyptian government, then the company will the expropriated property was sold to an Egyptian company, later, the Egyptian government compensation for expropriation, paid to the British government fund, governed by the British government.
In the UK, all cases of applying for foreign compensation in accordance with the provisions of the "foreign compensation law", the Commission's jurisdiction, the committee's decision for the final decision, not subject to any court review. The principle of distribution on the Egyptian government to give British citizens compensation, in accordance with the provisions of the Privy Council to give only the property owner in the Anglo Egyptian treaty column and the rights of owners and their heirs heirs, must be in the signing of the treaty and before is a British citizen. The applicant annese Minich company has industrial transfer to foreigners (retains the right to compensation in the transfer contract), but the foreign compensation commission refused to compensate the applicant, because the company's successor at the specified time before is not a British citizen. However, in this case and the heir to the case regardless of nationality, because the applicant is not the heir, but retained the right to compensation annese Minich company, apparently foreign compensation commission refused to compensate the decision is wrong to explain the order in Council, the error according to the traditional view is right within the scope of the jurisdiction of law mistake. But the decision of the house of Lords is that "the Committee due to erroneous results and accept the legal ruling over his jurisdiction." because of his nationality to successor's Commission has no jurisdiction, due to the nationality of the heir mistakenly accepted, they have no power to accept things, they have no power of the provisions of the regulations the committee demands beyond their jurisdiction, so it is ultra vires acts within the scope of judicial review. According to the views of jurisprudence, legal mistakes are all ultra vires, even in the original public institutions have the right to deal with a case, if in the process of the legal interpretation errors, put forward should not question, considering the factors to be considered, it has gone beyond its authority.
In theory, the famous British Administrative jurist William Wade to "ultra vires" as the core principle of administrative law, or "ultra vires principle" is the foundation of judicial review, because shortly annese Minich after the case, William Wade found that the basic principle of ultra vires has extended to administrative law. In the 1977 edition of the "administrative law", William Wade for the first time to enhance eye-catching ultra vires as "one of the constitutional basis of judicial power, and the rule of law, the sovereignty of Parliament, the government in the law.
Three, the main problems existed in the principle of ultra vires
With the rapid development of British administrative law at the same time, the research on administrative law especially on the constitutional basis of judicial review has not kept pace, which leads to the principle of ultra vires 1990s invalid argument. Many scholars have put forward the principle of challenge and expressed different views on the principle of invalid ultra vires, considered invalid is uncertain, unrealistic and contradictory and deviate from the scope of public law and other defects.
(a) uncertainty
On the right of invalid principle a strong criticism is its uncertainty, the ultra vires doctrine provided no guidance which should apply the standard of judicial review, the court decided to examine to what extent can the intention of seeking parliamentary legislative authority, always vague, can not provide a true reason for judicial decisions, judicial review on the question of jurisdiction to prove this point. As a legal problem, the British court has taken many different methods to determine the jurisdiction of the error. The principle of ultra vires does not provide any guidelines, not tell people what is the examination of the standard, did not tell people whether the standard of judicial review by the court to determine its meaning. The principle of ultra vires flexibility can maintain the simple intention of Parliament to obey the court appearance, but it is because of this special flexibility, finally took all convincing reasons. Because the intent of the Parliament can be used to the almost all types of judicial jurisdiction, so it loses the validity of the legal right of the specific jurisdiction.
(two) out of reality
Another criticism of ultra vires principle is it unrealistic, and cannot explain the development of the standards of judicial review. This outstanding performance in the courts to restrict the executive authorities to exercise discretion, although the British traditional practice is to refer to the intention of the parliament to explain the limitations of the rationality, the Parliament only hope that this power can be exercised on the basis of the relevant factors, reasonable and legitimate purposes. And this will bring about two problems, one is the Legislative Council will not provide the court any judicial control of administrative discretion of the guidelines; two is through the history of the development of administrative discretion to control the problem, you can find the reality of the intent of the council.
(three) self contradictory
Ultra vires principle there is a problem that sought to stultify oneself, exclude the exclusion clause in judicial review is the most obvious, the British constitutional theory is a Legislative Council on any matter, must execute theoretically if the judicial review of the court, reason is the court accordingly achieve the parliamentary intent in the Legislative Council has clearly pointed out do not want the court interference, which will produce controversy, more people search the legal status of the legislative intent, the ultra vires principle becomes more and more unreasonable stultify oneself.
(four) deviation from public law
For all the controversy, at least has reason to believe that the ultra vires principle as the basis of judicial review and the relevant legal authorization mechanism. However, the court extended the ultra vires principle, the use of many traditional sense is not a public organization. For example, trade associations, trade unions of these organizations, they can not be obtained from the regulations or privileges of the British king, but in fact, enjoy monopoly. The principle of public law or similar law for such institutions in a fairly long period of time. The mechanism of ultra vires without substantial change of the meaning is very difficult, these institutions did not get power from the law, not through the courts to rationalize the intention of parliament. Critics believe that the common law is the basis of judicial review, the court judicial review should be based on the common law, and not have to seek parliamentary intent, the court in the judicial review of judicial creativity. The common law theory that judicial review is a common law, is due to the development of the court in accordance with the law and justice of the judicial review principle. With the traditional theory of ultra vires need parliament different intentions, the common law theory that the development of the principle of the court need not hide the legislative intention of the.
Four, using the ultra vires principle in administrative law in Chinese
(a) scholars explain about the ultra vires administrative
The meaning of administrative authority, there are different interpretations in different China scholars, summed up the main three points: one is starting from the angle of administrative behavior of the administrative organ that, beyond the terms refers to the administrative organ to exercise the administrative power, beyond the laws and regulations given power range. Two is from the perspective of specific administrative act, the administrative organs beyond the authority refers to the administrative organs and their staff as well as legal, regulatory authority or administrative agencies entrusted by the organization of the implementation of specific administrative acts beyond the scope of the law and regulations. Three is from the point of view of the form of the performance beyond the powers of the executive, the executive authorities beyond the powers of the executive authorities to implement the executive power of the act.
These viewpoints also focus on the dispute in the following problems: one is the main problem of ultra vires, some people think that the administrative organ; some people think that the administrative organs and their staff; others think that is the administrative authorities and their staff, and the organization authorized by the authorized organization. The two is the scope of administrative authority the administrative problems, including ultra vires administrative power, but whether it should be included in the legislative and judicial, procuratorial power and other powers. Three is the administrative behavior of administrative authority, the specific administrative act beyond the administrative behavior of course belongs to the administrative authority, but also whether the abstract administrative act administrative excesse.
(two) the legislative interpretation on administrative ultra vires
Interpretation of British administrative law of ultra vires include almost all the illegal situation, namely: (1) breach of jurisdictional conditions; (2) a clear violation of legal procedures; (3) commissioned by the improper; (4) unreasonable; (5) not relevant consideration; (6) inappropriate (motivation; 7) breach of natural justice; (8) the surface error. Our country's Administrative Explanation of ultra vires is narrow, the "administrative procedure law" provisions of article fifty-fourth of the six kinds of illegal administrative acts, ultra vires is just one of them. Six cases of illegal administrative activities include: (1) the main evidence is insufficient; (2) the application of laws and regulations is wrong; (3) in violation of statutory procedures; (4) beyond the powers of authority; (5) abuse of authority; (6) do not perform or delay the performance of statutory duties. Among them, ultra vires comprises the following four situations: first, without permission. That the administrative organs should be resolved by the administrative relative person or by the market regulation or by social organizations, the organization and discipline to solve the matter, the administrative organs of the act has no clear rules and regulations, nor the corresponding authorization or entrust. Second, the level of ultra vires. That is, the lower level administrative organs shall exercise the functions and powers exercised by the higher authorities, or the internal organs of the administrative organs shall exercise the functions and powers shall be exercised by the executive authorities, or the administrative organs shall exercise the functions and powers shall be exercised by the administrative organs. Third, ultra vires transaction. Administrative organ of the former head of the administration to exercise the powers of the executive authorities in charge of the affairs of the B. Fourth, local authority. That the administrative organs of the region to exercise the powers of the administrative organs of the second region.
Reference
[1] Li Zhixiong, Yang Zhengping. The ultra vires administrative law on the principle of invalid [J]. Nanjing University law review, 2005 (8): 124-125.
[2] Zhou Youyong. The basic principles of administrative law research [M]. Wuhan: Wuhan University press, 2005
[3] William Wade. Administrative law [M]. Xu Bing, translation. Beijing: Encyclopedia of China Publishing House, 1997
[4] Wang Mingyang. British administrative law [M]. Beijing: China University of Political Science and Law