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The American system of administrative judges

2018-11-09 来源: 51due教员组 类别: 更多范文

下面为大家整理一篇优秀的assignment代写范文- The American system of administrative judges,供大家参考学习,这篇论文讨论了美国行政法官制度。在美国,负责行政裁决的行政官员被称为行政法官,包括行政法法官及非行政法法官。行政法官与司法法官不同,行使的是行政司法权。行政法官独立地进行行政裁决,并有相关制度保障其独立地位。行政法官制度伴随着美国的逐步兴盛而不断完善,充斥于美国社会的所有领域之中,并且使美国成为行政管理高效率的法治国家。

administrative judge,美国行政法官制度,assignment代写,作业代写,美国作业代写

In the United States, administrative officials responsible for administrative adjudication are called administrative judges, including administrative law judges and non-administrative law judges. Unlike judicial judges, administrative judicial powers are exercised. Administrative judges make administrative decisions independently and have relevant systems to guarantee their independent status. The study of the American administrative judge system is of great significance for improving the administrative hearing system and administrative reconsideration system in China.

Under the background of modern welfare state and regulated state, one of the characteristics of the development of state power is the continuous expansion of administrative power, and administrative power involves in all aspects of citizens' life. An important manifestation of the expansion of administrative power is the quasi-judicial power of administrative adjudication. In the United States, the officials in the administrative system responsible for administrative adjudication are administrative judges. The system of administrative judge may not be concerned by the public in China, but it is constantly improved with the gradual prosperity of the United States and pervades all fields of American society, and makes the United States a legal country with high efficiency of administrative management and a model for other countries or regions to learn from. This paper intends to summarize and introduce the American administrative judge system in order to improve the understanding of this system among Chinese readers and explore the significance of the American administrative judge system for the reform of China's administrative system.

The American administrative judge system plays an important role in promoting the implementation of American administration according to law and has also attracted the attention of domestic administrative law scholars. In the discussion of domestic scholars, there exists a phenomenon that the three confusing terms of administrative law judge, non-administrative law judge and administrative judge are not strictly distinguished and the specific use context is ignored, which is easy to cause confusion. To understand the American system of administrative judges clearly, these concepts must be clarified.

Administrative law judges refer to federal administrative judges in the United States, whose titles have undergone constant changes: when the act was enacted in 1946, it was called the Examiner; In 1966, the code was revised to a Hearing test; In 1972, it was replaced by Administrative Law Judge. The power and independence of administrative law judges are regulated and guaranteed by the federal administrative procedure act. In addition to administrative law judges, there are a large number of non-alj who are not protected by the federal administrative procedure act and serve in various administrative organs. Although they have different titles, they have similar duties and functions as administrative law judges -- representing administrative organs, organizing and presiding over hearings, and making administrative decisions, which are actually administrative adjudicators. The biggest difference between administrative law judges and non-administrative law judges is that the former is protected by the federal administrative procedure act and appointed by specialized agencies. The latter is only protected by ordinary civil servants, appointed and selected by the executive.

Although administrative officials who conduct administrative hearings and identify facts have different titles, the author believes that all administrative officials with judicial characteristics, whether selected by federal unified assessment or employed by administrative agencies, should be called administrative judges. Therefore, this paper defines the scope of administrative judges, including the special group of administrative judges and all other non-administrative judges employed by various administrative organs.

There are currently two types of judges in the United States. The first category is the well-known judicial judges who, according to article 3 of the federal constitution, not only have jurisdiction over civil, commercial and criminal cases, but also have jurisdiction over administrative disputes. The other is an administrative judge in the executive system, nicknamed "Hidden Judiciary" for his lack of knowledge. Although both are persons who identify facts, apply the law and settle disputes, administrative judges do not have the judicial power independent of the executive power, while judicial judges have the power to veto the actions of the legislative or administrative organs. In addition, the two are different in the following aspects:

The most striking difference between an administrative judge and a federal court judge is that the former tends to be more specialized, with more specialized expertise in identifying facts. They need expertise and practical experience in their field of expertise before they can be appointed administrative judges. Once they become administrative judges, their experience in the technical field of limited jurisdiction will be increasingly strengthened, as the disputes they decide involve only the administrative organs to which they belong and are repeatedly adjudicated on the same types of cases. However, due to the interwoven demands at present, the cases under the jurisdiction of judges in federal courts involve different kinds of laws and are complicated and complicated. To determine the nature of such legal relations, it is necessary for a judge to have a systematic legal knowledge system in order to handle various types of cases.

Under the federal constitution, federal court judges are nominated by the President but can only be appointed with the consent of the senate. According to the principle of separation of powers, the judicial system should be impartial, neutral and beyond political color, but in fact, the appointment and removal of judicial judges has never completely got rid of political factors. Usually, the President prefers to nominate members of his own party.

Unlike the creation of federal court judges, administrative judges are selected through a special and systematic selection mechanism, without any political color. Usually has the following two ways: one is by the administration of personnel to meet the requirements of the basic office the examination system in the administrative organ employing administrative law judge, by the personnel administration according to the inspection qualified applicants final score ranking and administrative organs open position, will be ranked in the top three list of applicants for administrative organs to choose, the so-called rule of three; Another way is to select and transfer existing administrative law judges from another agency. Both of these methods are based on merit system, and the ability to choose the object and the professional knowledge in the corresponding field are decisive factors. It is an objective choice to separate the political factors from the appointment process and prevent the administrative organs from abusing their power.

Reviewing the history of the expansion of executive power and the gradual growth of administrative organs, administrative adjudication has become the most important ruling system in the United States today. The federal administrative procedure act stipulates that administrative adjudication refers to the process of administrative agency forming an order. Administrative adjudication by administrative judges is in line with people's cognition, that is, administrative affairs have the characteristics of complexity and professionalism, so it is necessary for the adjudicator to have the expert knowledge and experience in this field, while administrative judges just meet the requirements. Administrative adjudication is a kind of function of administrative judge, but not equal to judicial power, but quasi-judicial power. Administrative adjudication in the United States is divided into two types, namely formal adjudication and informal adjudication, based on the federal administrative procedure act. Under the act, formal decisions apply to cases where the law requires a decision to be made on record in administrative hearings. Upon receiving a request for a formal award, the administrative organ shall have the power to decide whether to organize a hearing. The hearing of the formal ruling shall be presided over by the administrative law judge and the process of the hearing shall be recorded. The hearing procedure in the formal decision is just like the court's procedure, the litigant has the right to be informed, to give evidence, to hire a lawyer, to argue and so on. In addition, there are other forms of adjudication in the United States that do not belong to formal adjudication, often referred to as informal adjudication, and do not have to comply with the requirements for formal adjudication under the federal administrative procedure act. The federal administrative procedure act does not provide any mandatory provisions for informal adjudication, but it hopes that the executive authorities can adopt flexible solutions according to the specific situation of administrative affairs and the development and changes. Informal rulings do not require trial hearings, but instead use investigations, inspections and communications.

The scope of cases under the jurisdiction of U.S. administrative judges is first regulated by the federal administrative procedure act. Although the scope of jurisdiction provided for by the act is limited and many disputes are not covered by the act, it is in fact the jurisdiction of the administrative judge as long as it is governed by the statute law. The statutes that govern the jurisdiction of administrative judges may be federal, state, or departmental rules and bylaws. The classification of cases in which administrative judges make administrative decisions may involve the following types: implementation of civil rights, health and safety, environment, securities and commodities, labor relations, etc. Therefore, administrative judges actually have a wide and complicated jurisdiction.

Although administrative judges have the adjudicative powers of the administrative judicial nature, this does not mean that administrative judges enjoy the same status as court judges. The administrative judge does not have the judicial power independent of the executive power, and faces the dilemma of maintaining loyalty to the subordinate administrative organs and making decisions independently on disputes involving the administrative organs. In order to balance the conflict and ensure that administrative judges are not directly or indirectly bound by the executive, the federal legislation guarantees the independence of administrative judges.

The United States, like other European countries, has a series of laws that impose strict limits on the salaries of government employees. The federal employees comparable pay act of November 1990 is the main legal basis for the current pay system for government employees. The act establishes a basic principle that executive judges are paid according to their years of service, and that the office of personnel management decides the remuneration of administrative judges. Although the office of personnel management is not an administrative body employing administrative judges, it has the power to decide the proportion of the salaries of administrative judges, and it is isolated from the administrative body to avoid being affected by it and is not subject to the opinions of the administrative body, thus making the salary treatment of administrative judges completely free from the power control of the administrative body.

Moreover, a large proportion of administrative judges are paid in higher civil service pay grades, so they do not have to be controlled by the executive for higher pay. This practice helps to free the administrative judges from their control, ensures that they do not threaten them by, for example, wage cuts, and ensures that they make objective decisions independently.

The dismissal of administrative judges shall be subject to certain restrictions and shall be removed by the merit system protection committee on the basis of a hearing held by the merit system protection committee on the premise that there are sufficient reasons. So the term of office of administrative judges is substantially protected, and while their position is not for life, the term of office of administrative judges is almost permanent without the conditions specified in the federal procedural law. Some scholars believe that the position of administrative judge is not permanent, which is intentionally designed by the law, because it makes the system more flexible to adapt to the rapidly changing administrative needs and political considerations.

It can be seen that the legislation almost excludes the power of administrative organs to decide the salary and treatment of administrative judges and to dismiss them, so that they can remain independent. The federal administrative procedure act provides that officials who preside over hearings and participate in adjudications must act in an impartial manner. Administrative judges belong to the executive branch, so even if they do not have the transcendent position in the sense of judicial structure, they should guarantee their independence and achieve the goal of impartiality.

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