Study On The Remedy Judgment Of Administrative Litigation

The article 58th,article 59th item 2 in "the interpretation of Supreme People's Court on the Several Issues of implementation of 'Administrative Procedure Law of People's Republic of China's" provide a normative foundation for the remedy judgment in our country,but the normative foundation in addition to provide the applicable circumstances of the remedy judgment,the content of the judgment,the execution of the judgment and other parts are not made any provisions.There are also many remedy judgment cases injudicial practice,through analyzing these cases,we found that the judges have not have a clear understanding of remedy judgment about the functions,forms,whether judgment should be based on litigious claim or on authority,whether judgment can contain specific remedial measures and so on.The theory of administrative law circles have not been given enough attention to the forms of remedy judgment,has not yet been fully aware the simple and rough of the normative foundation of remedy judgment,and the dispute when apply the remedy judgment in judicial practice.This article will focus on three aspects which include"what is the remedy judgment,what should be the remedy judgment and how to apply the remedy judgment.As an independent form of judgment,the existence of remedy judgment has its legitimacy,it will not cause judicial power transgressing the executive power,it is one of the connotations of administrative jurisdiction that requiring the administrative subject follow the instructions of the court to reverse the adverse consequences of administrative acts.Of course,whether judgment can contain specific remedial measures when apply the remedy judgment,it may be related to the problem of judicial power transgressing the executive power,but as long as we proper design the types of cases and the applicable rules of remedy judgment,and strictly review the element of "the judge conditions are ripe",you do not have to worry about jurisdiction transgressing the executive power.The remedy judgment carries features such as to compensate the defect of does not completely settle disputes of judgment of repeal or judgment of confirmation,to realize effective relief of the rights of private party,to play illegal responsibility evaluation function of administrative judgment and to improve efficiency of administrative litigation,all above features of remedy judgment make it different from other forms of judgment and highlight the necessity to establish and perfect the remedy judgment.While protecting the right to protect trust interests or the right to remove illegal consequences,as well as to reverse the adverse consequences of national interests or public interests which caused by administrative acts,the above is further reflected the functional areas of remedy judgment.Remedy judgment of administrative litigation is a form of judgment to require the administrative subject to reverse the adverse consequences of administrative acts by appropriate behavior,this judgment is according to the plaintiff's claim of protect trust interests or remove illegal consequences,or according to the courts authority of protect national interests or public interests when the court making a repeal judgment or a confirmatory judgment.It has the following characteristics:remedy judgment has the nature of prestation,it is the positive response of the plaintiff's claim,the content which is enforceable mainly manifests for the confirmation of the right to protect trust interests or the right to remove illegal consequences;remedy judgment is usually attached to the judgment of repeal,judgment of confirming illegitimacy,judgment of invalid affirmation,or judgment of confirming legitimacy,so It having the form of attachment.Remedy judgment is a unity of the judgment based on litigious claim or judgment based on authority,in principle,based on the principle of "Select a judgment in accordance with the form of petition",the remedy judgment is a judgment according to the plaintiff's claim of protect trust interests or remove illegal consequences,but based on the maintenance of national interests or public interests,the court may exceptionally make a remedy judgment according to its authority.The court can accord to the plaintiff's claim or accord to the court's authority to make a remedy judgment only when meeting the following four elements:first,the administrative act is repealed or denied by other means;second,the administrative act resulting in adverse consequences;third,the establishment of the right to protect trust interests or the right to remove illegal consequences;fourth,the availability of reverse the adverse consequences.When meet the above elements,starting from the perspective of the effective protection of citizens' legitimate rights and interests,the court should be allowed to make a remedy judgment which contains explicit remedies.But at the same time,we must consider the necessary restrictions for judicial power,that is required by the division of administrative power and judicial power,it should be through the principle of "the judge conditions are ripe" to resolve the problem that in what circumstances the court can make a remedy judgment which contains explicit remedies.Expression the content of remedy judgment is the Iast phase of judgment applies,a number of technical rules of expression include:the part of "why make a remedy judgment and what effect should be implemented by remedial measures" should be documented in the part of judgment reason;the content of remedy judgment must be recorded in the text of the judgment;it should not only write "to order the defendant to take corresponding remedial measures",it is appropriate to clear that the remedial measures point to who,what adverse consequences the remedial measures should reverse and remedy period for the remedial measures for the text of the remedy judgment which is not contains explicit remedies,in addition to the above things,we should also take explicit remedial measures in the text of the remedy judgment;"take appropriate remedial measures" should be record in the text of the remedy judgment;the recovery period should be follow the rule that "to limit the recovery period in principle,not limit the recovery period in exceptional".