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The Role Of The Justice

Posted on:2008-07-10Degree:DoctorType:Dissertation
Country:ChinaCandidate:Y L BaiFull Text:PDF
GTID:1116360218961339Subject:Constitution and Administrative Law
Abstract/Summary:PDF Full Text Request
China promulgated administrative litigation law in 1989, it not only established the new relationship between citizens and the state, but also between the judicial power and executive power. although in the course of its implementation, the significance of the justice has been promoted, there is still a tense relation among the regulatory role, actual role and expectant role that the justice plays, so on the political and economic background of contemporary society, it is essential for us to look at the role of the justice more carefully. The essay observes this point on the perspective of administrative litigation.The standpoint of the essay is administrative litigation, that means, the essay not only refers to the origin, but also looks into the distance; besides the analysis of the norms and regulations which is the basis of the action, the essay also observes the actual condition of justiciary activities; the study of the essay refers the justice both in the administrative litigation and in macroscopical political system, what is more, the essay also explores the emergent principle of the role of justice in Chinese administrative litigation and the basis of the ideology beneath the surface of things, it depends on textual analysis, analysis of the structure function, discourse analysis and other analytical methods to make a comprehensive and deepgoing study on the role of justice in the Chinese administrative litigation,. Namely:Preface will make a brief introduction on the reason of the topic choosing, the content of the research, standpoint and method, application of specialized phraseology and so forth. Chapter 1—the origin of the role of justice in administrative litigation. This chapter analyzes the existence of the administrative litigation in original aspect and owes it to the connection of the requirements and the motivations. The requirements are widespread, every country which set up the system of administrative litigation (judicial review) is all the same. One requirement is the separation of the justice and the executive, which results in the independent judicial power; the other is the establishment of the conception of right protection. The end of the Qing dynasty, the Republic of China, mainland of the People's Republic after the reformation and opening up all fulfill these requirements and set up the administrative litigation on proper time, however, they are also distinct from each other because of the uniqueness of individual motivation. Following these study, the essay will analyze the definition of justice in the ideology of the legislation, concentrates on the three conceptions to discuss—"protect, defend and supervise", and points out the internal relationship among them and the guidance they give to the judicial activities.Chapter2-the role of justice in the operation of administrative litigation. The essay focuses on the actual judicial activities in the operation of administrative litigation, draws a conclusion that the justice plays the role of supervisor, the defence of the personal rights, coordinator, assistant and educator from some characteristics which reflect from the activities. Referring to the role of supervisor, the essay adopts the analysis of the statistics, and studies on the main aspects of administrative litigation cases since the establishment of the administrative litigation firstly, then discusses judicial reviews on the regulations, at last, observes the changes on the attitude towards the judicial review and supervisory patterns. When studying on the role of defence of the personal rights, the essay concentrates on the analysis of the types of personal rights, beneficiaries, defensive means and rights conception. The role of the coordinator is common in practice but not confirmed by the norms, so the judicial acceptance of the coordination, its nature and the existent reason is the core of the research. Compulsory execution without the trial in effect is the assistant of the administrative power. Besides the trial, the court also can play the role of educator by judicial suggestion and propagation.Chapter3---the role of justice in the political system. The essay takes the difference between the regulatory and actual role of justice as the access, and takes the jurisdiction of administrative litigation as an example to analyze the political influence on the justice, then by discussing on the relationship between administrative litigation and changes of power structure, legality, central national task, public policy, the essay refers to the political nature of the justice. Then, the essay observes on the activity of the justice. on the basis of the elements of the judicial activity, the essay introduces the type of judicial activity and manifest field, and points out that human rights and the principle of proportionality can justify the development of judicial activity. At last, this chapter explains whether justice is in a strong or weak condition in the political system and why.Chapter4--- the mechanism of the role of justice in Chinese administrative litigation. In the demonstration of this topic, the essay classifies this topic as follows: justice with the tendency to the functionalism, utilitarianism characteristic of justice, supremacy of public interest, two-way advance of the justice and executive, law of anti-centralized and localization. Judgment of the court must according to the statute and regulations, and pursuant of social influence results in the judicial tendency to the functionalism, but there is a conflict between the legal effect and social influence, social influence may impair the legal effect. China adopts a functionalism definition of right, namely, right is benefit, not an ethical principle, which results in utilitarianism characteristic of justice, that means personal rights lack of sacredness, personal rights are considered to be a benefit to balance in the judgment. In the trial, public interest takes precedence over the individual no matter in the conditional judgment or in the application of norms according to the regulation of Supreme Court. The generalization of the public interest in the justice causes the deviation from its object. On the operation of the realization of the role of justice, justice and executive promote pace in pace. Law of anti-centralized and localization exists in Chinese administrative litigation now, administrative trial is interrupted by local administrative organs seriously, but the court at higher rank will take measures both in and outside the trial to consolidate the lower court.Chapter5---expectant role of justice in the future. The discussion of the expectant role of justice will deepen step by step around the field of administrative litigation, administrative law and political community. At beginning, the essay refers to the re-sculpture of justice, according to the disadvantages of administrative litigation which are reflected by the actual condition of role of justice, it points out the internal problems of justice which must be resolved. Then the essay discusses on the location of justice in administrative law and draws a conclusion that there is an affinity between china and functionalism which results in the impossibility of judicial centrism. At last, the essay points out in a wider viewpoint that it is necessary for the political community to strengthen the role of justice and administrative litigation is significant to democracy and constitutionalism.
Keywords/Search Tags:justice, administrative litigation, political system, role
PDF Full Text Request
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