Study On The Application Of Law In Administrative Litigation During The Days Of Nanjing National Government

The administrative court of Nanjing National Government is the second time practice administrative litigation system in modern history of China. The secretariat of the Court of Justice published 484 copies of the administrative court, so we could understand and examine the whole process during the period of Nanjing National Government administrative adjudication law applicable. "Administrative procedure law" in 1932 was relatively simple, so the administrative court in the judicial practice is worth be exploring, researching and thinking.The establishment of the administrative court of Nanjing national government and the construction of the administrative procedural rules have their special historical background. Scholars of the parties is the administrative litigation system construction should follow continental law system or Anglo American law system, had launched a fierce debate, leading to the court of administrative organization, administrative litigation program and administrative courts in the trial practice are all more or less by effect of various theories. At the same time, administrative law, administrative procedure law and application of the law, the legal interpretation of the theory has also been rapid development in China, to the period of Nanjing National Government have constructed, localization of relatively complete theoretical system, the law in the practice of administrative adjudication applicable also produced far-reaching influence. The influence of Kuomintang in the period of "training administration" is also a factor that can not be ignored in the same time.In the process of law application, the first step to apply the facts. That is, the judge needs to apply the law of evidence to the "facts of life" provided by the parties to the "legal facts"". This is not only the basis and premise of the legal norms, but also the process of the application of evidence law. In the period of National Government, the judicial practice of the administrative court was used the evidence rules of the civil procedure law. But administrative proceedings have some special facts, in the application of rules of evidence and the method of "free heart certificate", the administrative court behave more rigorous, pay attention to review the evidence on the source and form of the administrative organs impose relatively more of the burden of proof.Finding and recognizing the legal basis of the trial is also important. The practice of administrative trial court shows that at the time of the constitution, laws, administrative regulations, local regulations, international treaties, the Judicial Yuan interpretations, case, administrative practice habits and administrative legal principle all served as a legal basis in the trial is suitable for. In addition to the laws, the central and local administrative regulations, international treaty and the Judicial Yuan interpretation and other types of sources of law applicable to safeguard the litigant rights and prevent abuse of executive discretion has positive significance. But the "provisional constitution" period of political tutelage terms as the basis for application of the law and the provisions of the "provisional constitution" against interpretation system. In addition, in the judicial practice of the administrative court, the identification of the illegal administrative act is extended to the obvious unreasonable administrative act.Legal interpretation and legal loopholes in the filling, oversee the administrative courts in the judicial practice, administrative court using not only such as literal interpretation, system interpretation, purpose interpretation and other legal interpretation methods but to combine it with the principles of the rule of administrative law. Reasoning in the process of administrative court judge in this very full, and the importance of citing principles of administrative law and local custom interpretation of legal provisions in the concept of uncertainty.On the whole, administrative courts in the judicial practice in the application of laws is of positive significance, although in a short period of time more than ten years failed to fundamentally change the situation at that time administrative rule of law, but the embodiment of the method in each a verdict, administrative court judge group literacy and wisdom is still worth later generations in enhancing the level of administrative trial learning and thinking.