Study On Interests Of Administrative Litigation

Interests of administrative litigation have been ignored by theorists for a long time. As the administrative litigation is presenting new forms, it is falling short behind in respect of rights protection and redress. Based on limitations of the national judicial resources, not all the judicial disputes can be settled. Thus, a standard of rights protection need to be built to form a new mechanism of screening out the cases, which is able to guarantee litigant's rights without running abuse of litigation, so as to avoid wasting judicial resources. It is interests of administrative litigation that is liable for this standard. This thesis attempts to make up theoretical system of administrative litigation, in order to solve the problems on Administrative Counterpart's rights and redress. This thesis is divided into five chapters.Chapter I is about "the interpretation of interests of administrative litigation ". Firstly, this chapter studies the interests of administrative litigation in civil law countries and Anglo-American law countries, and defines the concept of interests of administrative litigation. Interests of administrative litigation refers to the lawful interests of the administrative litigation, impaired by administrative acts, or the legitimate interests which is embodied when administration authority obliged to and is able to be exercised through the administrative proceedings. Its essence is "theory on party interests ", and its attribute is both requisite to raise appeal procedure and protect rights. It breaks through the negative function restricting the litigants' qualification, and pursuit the positive function generated from judicial rights. Secondly, it compares interests of administrative litigation to such related categories as rights of administrative action, administration litigation plaintiff qualifications, and forms of administrative litigation. Finally, it discusses the identification of interests of administrative litigation from eight aspects, namely, interests in administrative affirmation, administrative changes and administrative revocation, direct and indirect interest; personal and super personal interests; current and future interests; sue, appeal and further appeal interests; interests legally protected and worthy being defended; personal and property interests as well as other interests; interests of the public law and reflection.Chapter II is about "the evolution of interests of administrative litigation". After exploring its formation and development, this chapter analyses for what interests of administrative litigation aris(?) first, that is, cases of confirmation suit and deficiencies of administrative substantive law. Secondly, it asserts individual characteristics and growing trend of interests of administrative litigation. There are such differences between interests of administrative lawsuits and interests of civil lawsuits, as different legal intents and legal principles, diversity of administrative behavior, the effectiveness and necessity of administrative redress, the expanding trend in interests of the administrative litigation, specific judgment for individual cases, as well as the mutual promotion of theoretical development and litigation practice. Thirdly, it offers the theoretical foundation of interests of administrative litigation, namely, principle of rule of law, principle of human rights, principle of the separation of powers, the principle of judicial final settlement. Finally, this chapter sorts out the factors to affecting interests of the administrative litigation, including scope changes of the rights and interests protection, development of litigation purposes, necessity of judicial remedy and coordination of the judicial power and the administrative power.Chapter III is about "the elements of interests of administrative litigation". Such elements include subrogation litigants, litigation powers, and necessity of rights protection. Firstly, it analyzes the subrogation litigants. It refers to the qualifications of litigants in the parties'own name in a specific law suit, judged from three aspects, that is, whether the parties have the litigation proof ability, whether the parties have rights of instituting legal proceedings, and being in accordance with plaintiff's launching claims. It also analyzes the general cases of subrogation litigants from cases about administrative affirmance, administrative revocation and administrative supply. Secondly, the administrative litigation rights are the source by which litigants bring actions and attend court, and the means under the national laws, by which the parties eliminate the disputes and ensure their legal rights and interests. Among such theories on rights of administrative action, as advocated theory, legitimacy theory and possibility theory, the writer tends to have more to do with possibility theory. Finally, after analyzing the specific cases of rights of administrative action, it discusses the requirements of right protection. The necessity of right protection is formed on the basis of purpose doctrine, litigation economy doctrine, good faith doctrine, prohibition doctrine of lawsuit abuse, and is judged by different legal standards in the specific form of litigation, with different performances in the shortage lack of the common rights protection.Chapter IV is about "measurements of interests of the administrative litigation", Firstly, it introduces the modes of interest measurement of the administrative litigation. Its principles include legal principle, comprehensive principle, normal individual principle, punished leniently or severely principle and balance of interest principle. The measurement of interests can be conducted by the modes of adversary system and inquisitorial system, at the stage of proceedings, with appropriate allocation of the burden of proof. Secondly, in a particular case, interests of the administrative litigation should be ruled out, which means to rule out illegal interests, administrative act not falling in the scope of administrative litigation, and misconduct requests of administrative plaintiff. Thirdly, interests of the administrative litigation eliminate in three cases, that is, occasions of changed circumstances after the disciplinary sanction, extinction of interests in case due to the experiment of disciplinary sanction, occasions of execution of administrative disciplinary sanction. Categorization of administrative litigation set up the procedures of different forms of lawsuits, which bring in different interests. It studies interests in cases of administrative affirmation, including interests in the cases confirming whether the parties has established their relationship by Public Law (on the premises, that there do exist the interests legally confirmed, and that the confirmation of this relationship must be in the uncertain or unclear defined state and in argument all together, and that the administrative litigation plaintiff must have interests to be confirmed immediately), interests in cases of administrative affirmation about null and void act (given the factor of time and interests), interests in cases of administrative affirmation about unlawful act (on the premises, that there is the dangerous person repeating the harmful administrative sanctions, and that administrative sanctions has ended but the plaintiffs reputation has been belittled and his standing on rehabilitation is necessary, and that affirmation done by the administrative court violates the law, being a precedent for restricting other posterior decisions). It studies interests in cases of administrative revocation. Regarding that, there are such theories as possibility doctrine, exposure doctrine and persuasion doctrine. The author agrees with the last one. The adaptation of new protection norms doctrine in German administrative law theory to confirm interests of administrative revocation, not only modify the narrow view of reflective interests, but also keep the litigation form the mass action. Meanwhile it should take it into consideration of the maturity of lawsuits. It studies interests in cases of administrative supply. Generally, there are two forms of actions in the administrative supply, actions for general payment and actions for effecting. The former involves interests of administrative actions claiming for property and non-property payment, contractual payment in the public law; while the latter involves interests of administrative actions of neglecting and rejecting sanctions.Chapter V is about "expansion of interests of the administrative litigation". It has been a common trend to expand affirmed interests of the administrative litigation in the world. The expansion is the key to solve the problems on protecting the right of action in the new forms of administrative litigation, in the forms of connotation extension, content extension, function extension and protection extension, through which it can be effective to solve the problems, such as preventive rights of administrative actions, right of administrative prosecution, rights of administrative actions of private parties in special power relations, and rights of administrative actions of such special subjects of power as administrative body, in order to expand the scope of protection and relief of rights without compromising administrative legislative intent.