Analysis Of Administrative Judgment And Reconstruction

This thesis, the subject of which is the issue of administrative judgment and its feasible solutions, is divided into six parts. Chapter one is concerned with "right, litigious claim and administrative judgment". Based on the longitudinal and transverse analyses of the concept of right, including the contents of the private party's rights, the obligations of the administrative organs, the types of illegal administrative acts, the contents of the claim and the relations among different types of administrative judgments. This chapter discloses the corresponding relationship between the type of the private party's right, litigious claim and the administrative judgment. From the single angle of possible suit brought by the private party, the basic mode of administrative judgment in a country should include judgment of repeal, judgment of specific performance, judgment of compensation and judgment of dismissing a suit. Chapter two probes into "delegate of interest, attitude of the state and the administrative judgment". The administrative law is a public law, so the administrative judgment is different from the civil judgment, which is embodied in three aspects. Firstly, the administrative judgment has no judgment of affirmation in civil judgment sense. Secondly, in the light of high consistency of legality evaluation and validity evaluation, it is unnecessary to set two evaluation systems, just one is ok. Thirdly, in order to protect the legal rights and interests of the private party, and considering the priority of the administrative power and the possibility of re-exercising administrative power, following judgments should be added: judgment of affirmation, judgment of modification, judgment of re-performance and judgment of re-performance-forbidden, among which the necessity of adding judgment of affirmation and the judgment of re-performance-forbidden is paid more attention in this thesis. Chapter three deals with "separation of power, object of trial and administrative judgments". In this chapter, the relations among the specific administrative act, the administrative legal relations and the factual behavior is analyzed, and on the basis of this analysis, the thesis points out that there exist two kinds of object of trial, single and compound. The single object of trial means that the court only examines the specific administrative act, and doesn't decide directly the contents of the rights and obligations of the private party. The compound object of trial means that after repealing or renouncing the administrative act, the court should determine the content of the rights and obligations of the private party directly. Furthermore, the parlance of "affirmation of administrative factual behavior" is analyzed in this chapter. Chapter four is about "criticisms of the system of administrative judgment in China". In this chapter, current administrative judgment system in China is reviewed, and the problem of administrative judgment is more specific and more Chinese, providing a base for reconstruction of Chinese administrative judgment system. In my opinion, the judgments of maintenance, legality affirmation, and validity affirmation should be rescinded, and the scope and conditions of the judgments of illegality affirmation, invalidity affirmation, re-performance, specific performance, and modification should be amended and perfected. Chapter five is "construction of Chinese administrative judgment system". In this chapter, the process and logic of the development of administrative judgment system is clearly studied. The characteristic of the operation of administrative power and the necessity of protecting rights and interests of the private party are impetus of enriching administrative judgment system. The main objective of this chapter is to determine necessary types of administrative judgments in China so as to realize the target of administrative proceedings to protect the legal rights and interests of the private party. Chapter six is concerned with "conditions of applying various administ...