Research On The Administrative Service Litigation

Administrative subject have the obligation of Daseinsvorsorge to citizens in service administration, and citizens have the rights to claim administrative service under the public law. The administrative service litigation is considered as supplementary litigation, and it can provide complete and effective judicial remedy to citizens’ rights to claim service of public law. This paper have studied administrative service litigation from the five fields.ChapterⅠ, Introduction of administrative service litigation. In this chapter, there are analyses on our administrative fulfill judgment from the conditions of application, scope of application to effect of application. Lately, the administrative fulfill judgment was criticaled from two sides,that is conditions of application and content of judgment,. In order to settle the plight of the administrative fulfill judgment, administrative service litigation should be introduced. Administrative service litigation belongs to administrative litigation types. There isn’t administrative litigation types in China, but we can see its prototype from administrative judgments. so administrative fulfill judgment can provide theory foundation to administrative service litigation. There aren’t correspondence relationships between administrative judgment types and administrative litigation types, If being judged by claims perspective, the administrative fulfill judgment can only appear in the administrative service litigation. administrative fulfill judgment can be divided demanding performance of liabilities judgment and administrative service judgment,if it is judged by the standerd whether judgment content involve administrative disposition,and the former corresponds to demanding performance of liabilities litigation, the latter corresponds to administrative service litigation.In order to overcome the drawbacks of administrative abrogation litigation centrism, to settle the new types of administrative dispute and to protect the citizens rights to claim public law service effectively, we should establish administrative service litigation in China.ChapterⅡ, Definition of administrative service litigation. In this chapter, the paper defined the implication of administrative service litigation by the standard of administrative disposition, its characteristics were generalized as below:litigation object’s extensive, litigation function’s duality and litigation parties variability, then the differences between administrative service litigation and related concepts were analysed. On the basis of this, the reason why it is devided into performance of liabilities litigation and administrative service litigation is discussed. When plaintiff want to sue by administrative litigation, he(she)should choose the correctly litigation type. So it is necessary to clear relationship between administrative service litigation and other administrative litigation types. Related factors should be considered when choose administrative service litigationt, and judge’s power of explication should be paied more attention. We can learn from foreign successful experience, finally these goog pxperence were caiefully studyed in such country and areas as the United Kingdom, Germany, Japan and Taiwan though the way of functionalism comparison method.ChapterⅢ, Administrative service litigation’s forms. By the standard of administrative service claim rights, administrative service litigation’s types was divided into several types.taking the two parties as the standerd,the administrative rights can be divided into administrative freedom, administrative participation and administrative claim, and administrative claim right can be divided into administrative service claim right and administrative protection claim right according to the basis of right generation, and administrative service claim right can be divided into administrative service claim right of interests and administrative service claim right of action by its content, while the former corresponds to the administrative service litigation and the latter corresponds to the demanding performance of liabilities litigation. According to the nature of administrative service claim right, administrative service litigation can be divided into the positive and the passive. Positive administrative service litigation includes property service litigation, administrative factual act service litigation and administrative contract service litigation. According to the basis of claim right generation, property service litigation can be divided legal provisions and administrative action of it, the latter includes unjust enrichment in public law, abstract management, administrative compensation and administrative recuperation, and the typical types of administrative factual act service litigation is information disclosure litigation and remove illegal consequences litigation.Passive administrative service litigation includes cease action litigation and defensive litigation, the typical form of the latter is information anti-disclosure litigation.ChapterⅣ, The main elements of Administrative service litigation. Based on the distinguish of sue essentials and litigation essential, the opinion of the article is that administrative service litigation includes court judicial power, litigants, subject matter of action, litigation interests, administrative service litigation litigants include plaintiff, defendant and the third party, in which the proper plaintiff is asserting the right to claim service of public law and his(her) right has been infringed because of defendant did not fulfill service obligations.The subject matter of action is the object of trial and judge in administrative litigation, and the subject matter of action administrative service litigation ought to be right claim, or the right claim that illegal administrative act has infringed or damaged plaintiffs right. The core of litigation interest is whether it is necessary to protect plaintiffs right by judicial or not. Whether plaintiff has the right to service claim is the core of administrative service litigation interest, and the right to service claim can be decided by the provision of law, the agreement between the litigants, or the previous act. While, whether have litigation interest in administrative service litigation should be judged form two respections, that is procedure conditions and opportunity. In addition, when there is ineffective and useless rights protection, there isn’t litigation interest in administrative service litigation.ChapterⅤ, Administrative service litigation regulation. During the administrative service proceedings, the applied provisional measure of preservation include attachment of property in litigation and beforehand execution primarily. The premise of that the plaintiff can sue is that he(she) has the right to service claim of administration indeed, so the plaintiff should bear the burden of proof the fact that he (she) has right to service claim. Therefore, the rule of allocating the burden of proof in administrative service litigation is "He who claims,he who proofs it " in generally. Based on legitimate and voluntary, mediation can be applied in administrative service litigation, because of its object is non-administrative disposition, and is involve more money service litigation. In administrative service litigation, administrative judgment types’ choice should be based on the plaintiffs claim and the possibility of the right to service claim. The force of administrative service litigation judgment is mainly reflected binding force, determinative force and executive force. Among them, it is the executive force that makes the administrative service litigation defferent from orthers,for the plaintiff can apply to the court for enforcement according to verdicts.