What Is Prior Service Enlistment?

Administrative registration refers to the act by which an administrative agency, in accordance with the relevant provisions of laws, regulations, and regulations, and in accordance with the relevant provisions of laws, regulations, and regulations, applies to the counterparty, and writes in writing legal facts concerning the personal rights and property rights of the counterparty that meet the legal requirements. .

Administrative registration

Administrative registration means that in order to achieve a certain administrative purpose,

The administrative registration has the following four characteristics: ^[1]

Accurately defining the nature of an act is a prerequisite for the proper application of law. Scholars have different views on the nature of administrative registration. First, administrative registration is a public law act. That is to say, administrative registration is an administrative act, which must be composed of the application of registration by the administrative counterpart and the act of examination and registration by the administrative authority, so it is also called administrative action by application. Second, administrative registration is a private law act. That is, from the perspective of civil law, in the act of registration in the field of private law, the administrative subject does not exercise administrative power for administrative purposes. If the registration of real property rights is only a method of publicity of real property changes, it should be attributed to a civil act rather than an administrative act in administrative law. Third, some scholars believe that administrative registration has both an obvious function in the sense of private law and a strong function in the sense of public law. ^[1]

The classification of registration behaviors is based on the establishment of the scope of adjustment of the "Administrative Licensing Law" of China, and the registration behaviors can be classified into two categories: permitted and non-permitted. ^[2]

The shortcomings of the administrative registration system in our country have caused great damage to the realization of the administrative registration system and the more important protection of the rights and interests of administrative counterparts. To truly realize the rule of administrative law and comprehensively protect the interests of counterparts, judicial review is the last Is also the most important way. Therefore, it is of great significance to fully incorporate administrative registration into the scope of judicial review and improve the suitability of administrative registration. It is a breakthrough in improving China's administrative registration system. ^[3]

(1) Three effects of administrative registration in private law ^[1]

(1) The types of registration actions are complex and difficult to unify ^[2]

(1) Reasonably setting the review obligation of the registration authority on the basis of type ^[2]

The discussion on the review obligation of the registration authority must be based on the type of registration behavior. Among them, non-permissive registration is a typical non-ideal behavior, and permission-based registration needs to be treated separately. Regarding general commercial registration, regardless of development, As far as the current situation is concerned, it is no different from non-permissive registration in terms of behavior characteristics and legal effects. The market access of special industries and the registration of business, social group legal persons and private non-corporate legal persons are currently set by law. The examination standards are relatively strict. Such registration is no different from the examination and approval activities of administrative organs, and it is a specific means of state control. Therefore, substantive examination is the fundamental requirement for achieving the purpose of control.

From a proper perspective, non-permissive registration should be a non-ideal act. The so-called ideological behavior refers to the behavior of the administrative subject expressing the internal meaning of performing an administrative legal act in a certain way to the outside. The purpose is to establish, change, and terminate the specific rights and obligations of the counterpart. Non-ideal acts do not set any rights and obligations for the counterparty, but only rely on legal provisions to produce effects. As a typical non-ideal act, the rights and obligations recorded in the registration certificate basically depend on the basic civil legal relationship or legal facts. For example, marriage registration depends on the parties' willingness to conclude a marriage relationship, and real estate registration depends on the corresponding debt contract or The fact that the property rights have changed. The role of registration is merely to superimpose a layer of officially recognized color on the civil rights of the counterparty, and its behavioral effects are entirely based on the direct provisions of the law rather than the intention of the administrative agency. Therefore, academic circles call it quasi-administrative behavior. For such registration, the essence of establishing the review obligation of the registration authority lies in balancing the relationship between the efficiency of registration and the authenticity of the content.

At present, building a fast and simple registration procedure and adopting the "window review" method is a common trend in the development of registration systems in various countries. How to achieve the coexistence of security and efficiency, the key is to construct and improve the mechanism of sharing the review function of the registration authority. For example, for the registration of property rights, the formal consent in German law and the pre-notarization procedure in Swiss law are window inspections. Effective guarantee mechanism to achieve rapid registration on the basis of real registration.

As far as our country is concerned, it is obviously unrealistic to stick to the substantive review standards of comprehensive interference. The intention of the reform and the status quo of the actual obligations of the registration authority show that both in the sense and in the actual sense, we are improving the registration efficiency Weakening the control of window review as the core. According to the relevant laws and practices, it should be clear that the examination of non-permissive registration application materials is more formalized than the permissive registration, that is, the completeness of relevant materials and documents is the review principle, and its authenticity is usually registered. The degree to which the authorities can identify is the review standard, and the principle of obvious and significant exclusion is generally adopted, that is, adherence to the "relative reviewism" standard, and the introduction of insurance and interbank guarantee mechanisms to ensure that true right holders are fully compensated.

Therefore, clarifying the legal attributes and actual functions of registration, and distinguishing between the two types of registration based on this, are the prerequisites for restoring the original attributes of registration and providing system guarantee.

(2) Restricting the right to cancel registration and ensuring the certainty of the effectiveness of registration

Although China's registration system involves a wide range of issues and types, the stability and credibility necessary for public notification functions are the common core of its effectiveness guarantee, which is manifested in the relative stability of registration effectiveness and restrictions on the right to cancel registration.

1. The Limitation and Legality of Negative Conditions of Registration Effectiveness-Take marriage registration as an example.

Marriage registration is the only system in China that clarifies the negative conditions of registration effectiveness. According to the "Decision on Amending (Marriage Law of the People's Republic of China)" adopted by the Ninth National People's Congress Standing Committee on April 28, 2001, and "On the Application (Marriage Law of the People's Republic of China)" announced by the Supreme People's Court on December 25, 2001 Interpretation of Several Issues (I), China has determined the system for the identification of invalid marriages and irrevocable marriages, thereby realizing the limited and legal nature of the negative effect of marriage registration.

(1) Negative qualification of registration effect. Marriage registration, as a statutory establishment element of a special status relationship, is reflected in the addition of public will to private behaviors and has a identifiable publicity effect, that is, the parties' intention to have a marriage relationship is expressed through registration. Establish a marriage relationship with identifiable external representations. The identity attribute of the marriage relationship and the purpose and nature of the marriage registration determine the legal effect of the marriage registration mainly depends on whether it meets the substantive provisions of the marriage law. Procedural requirements other than the entity requirements do not form the basis of the validity of the registration. This makes the negation of the effectiveness of marriage registration restrictive. In other administrative procedures, the basic purpose of the administrative procedures set by law is to protect the administrative counterparty. Therefore, violations of legal procedures are usually considered as invalid or revocable administrative actions. As for the marriage registration act, the procedure is illegal, but if the parties to the marriage meet the substantive requirements of marriage or divorce, neither of them constitutes a reason to deny the effect of the registration act.

(2) Negative legality of registration effect.

The current marriage law in our country stipulates that the denial of the effectiveness of marriage registration includes two situations, namely, confirming the invalidity of the marriage and revoking the marriage registration, and adopting strict legal principles for the invalidation and revocation of the marriage. According to the "Marriage Law", invalid marriage refers to lack of marriage. Illegal marriages that have elements that have no legal effect. Article 10 of the Marriage Law invalidates marriage in four cases: bigamy; relatives who are forbidden to marry; people who have medically unmarriable diseases before marriage and who have not been cured after marriage; and who have not reached the legal marriage age. A revocable marriage refers to a situation in which one party to the marriage violates the true will of the other party and coerces the other party to marry. The coerced party can request the marriage registration authority or the people's court to cancel the marriage within the legal period (Article 11 of the Marriage Law) ).

2. Restriction of registered public credibility on judicial revocation right: Take the registration of real rights as an example.

The negative statutory and restrictiveness of the effect of marriage registration is based on the stability of protecting the special identity relationship.

For the registration of other non-identity relationships, there is also a factor that prevents the exercise of the right of revocation, that is, the credibility of the registration.

Taking the registration of property rights as an example, the credibility of administrative registration is a setting of the law on the effectiveness of administrative registration. Once registered and publicized, the outside world can trust the content of the publicity, even if there are flaws or even errors in its entity. Publicly known third parties will also be protected. Therefore, once the applicant's application is recorded in the register, it will have two legal effects: presumption of rights and protection of trust. The rights of a third party in good faith due to trust in the registration shall be protected by law. This credibility determines the limit of the negation of the effectiveness of the registration act, which is reflected as a restriction on the right to cancel the registration. For example, according to German law, the parties have the right to appeal to the Land Intermediate Court against the decision of the Land Registry. The object of the appeal is the decision of the Land Registry, which mainly refers to the decision to refuse the application for registration, but also stipulates that the registration itself must not be filed. Appeal (section 71 of the Land Registration Ordinance).

The reason is that if the stability of the registration or deregistration is shaken by different decisions of the appeal court, it will damage the credibility of the land register.

Registration often involves multiple legal relationships. In the registration of property rights, three types of legal relationships may usually be involved: the administrative legal relationship between the registration authority and the registration applicant; the civil legal relationship between the registered right holder and the registered objector; Civil legal relationship between third parties. Therefore, changes in any one link may trigger a chain reaction of the entire relationship chain. The most typical manifestation of this chain reaction is the impact of changes in the original registration on the interests of third parties. The exclusivity of property rights determines that changes in property rights will necessarily hinder the interests of third parties. One of the cores of the design of the registration system is the protection of society and a reasonable balance of social interests. Reflected in the registration defect relief, it is necessary to combine the registration relief system with the issue of credibility protection in order to achieve a balance and coordination between the registered credibility and the rights of stakeholders.