A Study On The Institution Of Protection To Right To Sue In Administrative Litigation In China

In1989, the Administrative Litigation Law of People's Republic of China was formally promulgated, marked the administrative litigation system with Chinese characteristics formally established, which turned to be an important milestone in process of the construction of democracy and the rule of law. Since the implementation of the Administrative Litigation Law, to some extent, resolved administrative disputes, protected the legitimate rights and interests of citizens, legal persons and other organizations as well as promoted the administrative organs according to law. However, there are problems with the provisions and the implementation of the Administrative Litigation Law. Currently, one of the most intense reflection problems is "to sue difficultly"(either " hard to complain " or " to file difficultly")."To sue difficultly" is actually subjective psychological feelings belonging to a party of administrative prosecution.This feeling is mainly from two aspects:one is because of feeling to the court filing process, too cumbersome, complicated, and inconvenient to make, such as the courts require the parties repeatedly supplement, correct indictment and prosecution material, lengthy review of court time, etc.. On the other hand, it is a party believes that the prosecution meeting the statutory requirements, but the court refuses to file, or being filed, the case was difficult to enter the substance of the trial stage. The main criticism of the masses is the latter. The court feels administrative proceedings filed difficult the same as the citizen, the party and the concerned person in judicial practice, Some judges feel once administrative cases be accepted, it is difficult" to send out" or to solve by law when problem involving the plaintiffs claim no more a simple question of law, the Court can not deal with, or accept it in certain cases, to bring a lot of trouble which may spark off distress to the court or judge. The court thus file these cases, very hesitant, even reluctant to accept.The reasons for this are various, either because of legal issues, or regardless with laws. In the first place, there is higher requirement and strict system by Administrative Litigation Law. Even though suitcase is available for court, due to the higher threshold, they wouldn't receive it. Moreover, the lack of relative systems and procedures the law, such as obfuscating establishment requirements and lawful ones, undefined evidence rules, irreducible minimum of procedural participant and so on. The restrictions in laws and practice, therefore lead to serious problems which making some rights in dangerous.This article is divided into four main parts. The first part is on theoretical bases of administrative suing. Administrative Suing System, in other words, is a system of administrative suing, in order to guarantee exercise of the executive authority to prosecute a series of legal rules and regulations for the State party, including the prosecution of the conditions, the way of prosecution, the court's review of the prosecution, prosecution effectiveness and judicial assistance and legal aid, as well as the right to sue for violations of conduct relief sue security system. Administrative right to sue the parties is the right to administrative proceedings based on comparison with the civil right of action, which has formed characteristics such as the unilateral nature, limited power on punishment of the executive and protection the interests of the entities as the opposition of executive power. The exercise of the right to sue the executive administrative proceedings can be started directly first instance procedures and administrative litigation function of the play, offers the possibility of public participation in administration. Administrative prosecution system should be used to protect the rights of parties to sue for the construction and operation of the target, while in the case of regulatory Court accepted rights, but also to protect the validity of the exercise of the right to sue.The second part is on the comparison of the administrative suing system. Extraterritorially, two-track relief system including administrative as well as judicial remedies would be offered to administrative counterpart in some national and regional area with better legal environment. Administrative relief procedures would be set up before administrative proceedings (judicial review) through registration system to file a case.. Accordingly, there is no difficulty in these countries and regions to start administrative proceedings (judicial review). In order to prevent abuse of the right to sue, the provisions of the stringent conditions for prosecution and administrative review of the filing system in China's Administrative Procedure Law is raletively strict., the starting point of administrative proceedings in the first instance is dued to acceptance of court rather than sued by plaintiff.." High-end " sued conditions has not only prevented the plaintiff to has standing in the case, but also made the legality of court reviewing before filing being questioned. The principle that administrative remedies should be applied firstly, the registration system to file a case,, civil law litigation system, the " two-stage litigation trial mode " and the right to participate in the procedure of case acceptance (or litigation trial stage), such experience are worthy of adapting from extraterritorial area, for China's administrative prosecution system.The third part is on the operation of the administrative suing System. This chapter based on two aspects to examine system of administrative prosecution, that are litigation brought by the party and filing a case by court..For the former, the majority of parties will not choose to resolve administrative disputes by administrative proceedings, mainly because the parties have to fear of retaliation by executive authorities. And the effectiveness of administrative proceedings is called down by the public, without trust and confidence to administrative proceedings. While for the the court filing, the filing of administrative litigation is in a dismal condition, that only a small number of first trails for administrative cases, with very low proportion of cases of first instance, which reflects the low utilization of administrative litigation. The "export" problem of administrative cases must be considered when the court deceide to hear cases. In specific cases, the selective-administrative proceedings filed show selection of the performance of the region, the filing period, the types of cases, the parties (the plaintiff) choices. The reasons why the courts'filing will be selective,and carefully filed are because of judicial policy, the lack of judicial resources and the ability of the Court of Justice limited the trial court to avoid and reduce risks."Hard to prosecute or to file a case " is a microcosm of the administrative litigation's implementation of the troubled system.The fourth part is on the improvement of the administrative suing system. China's " Administrative Litigation Law Amendment"(draft) although established that the People's Courts and administrative authorities shall guarantee parties the right to sue, expand the scope of accepting cases, increase the ways of oral complaint, strengthen the bounding process to constraint courts'power to accept cases, and.clearify courts' liability when violate the parties'right to sue,"High-End" prosecution conditions and "executive" filing review didn't changed fundamentally.. Not only the right to sue should be respected as to form by administrative prosecution system, but also sued conditions ought to be formalized legislatively. To implement registration system to file cases, so as to ensure the parties can enter unobstructed administrative proceedings, and to start first instance of administrative proceedings directly through the prosecution. Even more, the right to sue is in need of more substantive protection, scientific and reasonable set of litigation requirements, as well as establishment of principle that administrative remedies must come first,,regulate disrection of courts to dismiss the action. Meanwhile, to improve relief mechanism of the right to sue and other security systems.