A Research On The Problems And Soltions Of Non-litigation Administrative Execution System

According to the law, institutional administration compulsion includes the administrations’ self-execution and the courts’ mandatory enforcement. Here the courts’mandatory enforcement is non-litigation administrative enforcement in the field of academics. It is an important part of the administrative enforcement. Briefly speaking, non-litigation administrative enforcement refers that if the parties do not apply for administrative reconsideration, bring an administrative lawsuit or perform the administrative decision within the prescribed period, the administrations would apply for the courts’ mandatory enforcement after the expiry of the period.Non-litigation administrative enforcement is very significant, however, with the deepening of research and practice, non-litigation administrative enforcement appears more and more problems, and there exist many difficulties in non-litigation administrative enforcement. One problem is the plight of the court judicial review. If the court only reviews the decision which is based on the administrative implementation, the court review will become a mere formality. However, if the court proceeds to examine as to substance, it may lead to the difficulty in achieving efficiency, meanwhile, it does not conform to the non-litigation requirements of non-litigation administrative cases. The second problem is that the arrangement of executive subject violates legal principles. If the courts execute the non-litigation administrative cases, it will violate the basic legal principle that the executive power and the judicial power do not belong to the same category. The third problem is the plight of responsibility. The current law does not stipulate who undertakes the loss which is caused by the unsolicited court’s compulsory execution, the loss to the interested party which is caused by the non-litigation administrative enforcement and the loss to the interests of main body which due to the court does not review the administrative authority’s legal basis of administrative decision.Based on the above analysis of the plight of the system, this thesis points out that the reason why the non-litigation administrative enforcement exists the mentioned above difficulties is the confusion between the executive power and judicial power, and the failure to deal with the relationship between efficiency and fairness. On this basis, the key to further solve the problem of non-litigation administrative enforcement system is to deepen the judicial review, reasonably deal with the relationship between justice and efficiency; establish the separated operating mechanism, submit the power of judicial review and the power of specific enforcement to the courts and the administrations respectively; improve the system of right protection and handle the relationship between public interest and personal interest properly.