| The judgment of the validity of an administrative act is whether to acknowledge it can has the effect “tantamount to law”. Legitimacy is only one of the basic standards to make this judgment. Although legitimacy is an important condition for the judgment, it is not sufficient in itself. Therefore, the judgmental process can not be equated to a simple inference process from legitimacy to validity. The judgment should bases on a comprehend consideration of several standards and a comprehend application of several rules.The subject matter of the judgment is dualistic, i.e., act and result. The basic standard of act orients to rule of law in form and aims to realize general prevention, while the standard of result orients to rule of law in essence and aims to realize administrative purposes and a due administrative order. The judgment should also consider several subjective and objective requirements. Objective requirements include mainly four aspects, that is, whether the administrative act has some defects in its authority, its procedure, its form and its content. According to the German well-accepted theory, subjective requirements include three elements, that is, will of conduct, will of expression and will of effect.As to the logical standards of this judgment, whether the administrative act accords with law, purpose and moral should be considered. When it is ambiguous whether an act accords with law or not, purpose and moral standards can make it up. And even it is certain that an act accords with law or not, purpose and moral standards can also correct such conclusion. In the course of this judgment, there are also several rules should be complied with. In general, the validity of an administrative act can be judged by its legitimacy. When it is difficult to judge whether the act is legitimate or not, its validity can be judged according to administrative purposes and ethics and moral. If a legitimate act deviates from the administrative purpose or moral rules, the purposes and moral standards should prefer. In the course of judgment, the rules of balancing defects, balancing interests and balancing values should also be applied. |
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