Research On The Judicial Review Standard Of Non-litigious Execution Administrative Cases

The system of non-litigious administrative execution,also known as administrative non-litigious enforcement,non-litigation executive administrative cases,it is usually expressed as the "administrative organs applying for the people's court for enforcement" in law,that is the most important part of the system of administrative enforcement in China.The present administrative enforcement system of our country adopts the mode of "people's court based,supplemented by administrative organ to perform".Actually,the quantity of non-litigation administrative execution cases is more than the quantity of administrative litigation cases.According to the dates of 2005-2014 counted by the supreme people's court,the quantity of the former is usually more than 1.2 times of the quantity of the latter,and the maximum reached 2.4 times(2007).But the quantity of cases with such a large scale is incompatible with the very simple judicial review standard of non-litigation administrative cases and the lack of a clear explanation.And because of such cases do not adopt judicial review mode of "both sides",but "written examination based,supplemented by the substantive examination".If the standard of judicial review is not clear,it will easily result in surface judicial review,the court will reduce the executive organ of the administrative organ,the legitimate interests of administrative relative person will be prejudiced,the public credibility of the judiciary will be harmed,more likely to aggravate antagonism between the administrative relative person and administrative organs,there by affecting the realization of the administrative goals.Therefore,it is of great theoretical value and practical significance to carry out research on the judicial review standard of non-litigation execution administrative cases.The biggest problem in the judicial review standard of the non-litigation execution administrative cases is not on the surface,but the general,vague and unclear content of the standard itself.In the current law standard of review is summarized as three "clearly illegal" standard.Adding legality and rationality review in the expropriation of land and housing reflects on the thinking that non-litigation administrative execution cases set up the review standard on the basis of different types.But the standard of review is not still systematic and comprehensive,all kinds of standard needs further substantial explanation.This article was demonstrated from the original intention of the non-litigious execution administrative system — limit the abuse of administrative power,protect the legitimate rights and interests of the relative person,based on the borders between the executive power and judicial power in judicial review,made the necessity and limitation of judicial review clear,proposed setting the standard of review needs to reflect the purpose of system setting,consider the diversity of object of review and the operability of practical execution.This paper argues that,in view of the multiple non-litigation execution administrative cases in practice,taking into account some objective conditions such as the equipment of court personnel,the standard of review should be given priority to "invalid review",the concrete should start from five aspects,including serious violations about no qualification of administrative subjects,serious violations of factual basis and legal basis,the major illegal administrative process,the major illegal administrative behavior of the form and content.In order to prevent the administrative subject to infringe upon the lawful rights and interests of the administrative counterparts in the name of "public interest",the cases involving in public interest shall accept the "invalid review" and the review of legality of administrative acts,the focus is to prevent the administrative subject to abuse administrative discretion,therefore we need to review two aspects :one hand is whether the administrative organs' power is exceeded and another hand is whether abused.Non-litigation execution administrative cases usually meet negative resistance from Administrative Counterpart in practice,a very important reason for that is the neglect of "rationality" and the enforcement of legal but unreasonable administrative acts,this will inevitably lead to the relative person's confrontation and opposition.Accordingly,for all kinds of non-litigation execution administrative cases,balance of interests is also required.This review standard benchmark should be considered from the Group interests,the content of the review is the rationality of administrative action,the scale what we grasp is the principle of proportionality.About the way of case review,we should still adopt the current pattern— "written examination based,supplemented by the substantive examination(public hearing)",but the hearing examination must be carried out under the standard of legitimacy examination,to listen to the opinions of the administrative subject and the administrative relative person.