Research On The Right Of Administrative Action

The theory about the right of action is one of the basic theories in the field of litigation law.For a long time,the discussions about the right of action mainly focus on the field of civil litigation.In contrast,the study about the right of administrative action is relatively weak.Although the study about the right of civil action has been relatively mature,due to the theory about the right of civil action can not be completely copied,the nature,content,constituent element and security mechanism of the right of administrative action are still doubtful and need to be clarified.In addition to the introduction and the conclusion,the full text is divided into four chapters:The first chapter is "the basic definition about the right of action and the right of administrative action".Traditionally,the discussions about the right of action focus on the field of civil litigation law.With the ideas about "the right of action's constitutionalization","litigation basic rights" and "close to justice" are booming in the world,the studies about the right of action gradually rise to the level of jurisprudence and constitutional law,and extend to criminal litigation and administrative litigation in the litigation law level.The right of administrative action refers to a procedural right that the administrative litigation parties request the court to judge in accordance with the law.As a kind of the right of action,the right of administrative action has the following basic characteristics.Firstly,it belongs to the rights of public law,which are proposed to the court who represents the judicial power of the state by plaintiffs.Secondly,it belongs to the procedural rights,which helps to protect the substantive rights of the person who has the right of action,but is independent to the substantive rights.Thirdly,it belongs to the second level rights,which only plays a role of remedy.Fourthly,it runs through the litigation process,which is different from the administrative litigation rights.Finally,it belongs to the plaintiff and defendant,and we can not advocate that the right of administrative action is only for the plaintiff by flowing reason:the administrative body has no right to file a counterclaim or no necessity to use administrative litigation to perform its duties.In addition,the right of administrative action also has the following exclusive characteristics.Firstly,the rights of action between the plaintiff and defendant in administrative litigation are not equal.The plaintiff has the right to sue and to obtain the substantive trial,but the defendant has no right to file a counterclaim or no demand to obtain the substantive trial.Although the plaintiff and defendant in administrative litigation have the right to obtain fair trial,this right's time to actually survive for both parties are different.Secondly,the right of administrative action has the effect of power's restraint,specifically relating to the administrative jurisdiction's restraint and administrative power's restraint.Thirdly,the right of administrative action involves public interest.After the exercise of the right of administrative action,whether the plaintiffs personal interest has achieved or nor,the administrative legal order has been objectively maintained.Meanwhile,in the case which threatens public interest,even if the plaintiff is damaged only for the reflecting interest,nor does it affect the plaintiff to make a objective litigation.Within the administrative litigation law,the theory about the right of administrative action is in the central position,which is closely related to the theory about the purpose of administrative litigation,the theory about the object of administrative litigation,and the theory about the type of administrative litigation.The deep-and-prosperous research of the theory about the right of administrative action also has a positive significance to promote the study of other basic theories in administrative litigation law.The second chapter is "the nature about the right of administrative action:putting forward the theory about layered right of action".The nature about the right of administrative action is intended to answer what is the right of administrative action.For a long time,in other countries and regions,the study of the nature about the right of administrative action is based on the specific doctrines about the right of action,and after defining the nature about the right of action by the doctrines about the right of action,the specific content about the right of action can be obtained at all the litigation stages.By combing the academic history,we can find that the nature about the right of administrative action has gone through a lasting controversy among the doctrine about the right of action from substantive law,the doctrine about the right of action from litigation law and other recent doctrines about the right of action.However,we haven't been able to form a broad consensus.Because of the different focus of the purpose of litigation or the different research perspectives,the doctrines about the right of administrative action still lack an unified evaluation criteria.This paper argues that the urgent task is building a common dialogue platform and forming a unified evaluation criteria for the doctrines about the right of administrative action,and then we can select the most suitable program for China.Based on the criteria that to identify elements of the right of administrative action needs substantive review or formal review,we can divide above doctrines about the right of administrative action into two camps:the doctrine about the right of action based on substantive conditions;the doctrine about the right of action based on formal conditions.The doctrine about the right of action based on substantive conditions has fatal defects,for example,the conclusion to identify the right of action is inconsistent with reality,go into errors of judging before trial,departure from the reform direction to solve the problem that "the cases-filing is hard to come true",and imply irreconcilable paradox.In comparison,the doctrine about the right of action based on formal conditions can ensure the conclusion to identify the right of action consistent with reality,helps to develop the real case-filing registration system in China and solve the problem that "the cases-filing is hard to come true" actually,and strengthens the function mode of administrative litigation to maintain objective legal order.However,the doctrine about the right of action based on formal conditions still has defects in current.This paper argues that we should use "the theory about layered right of action" to correct the doctrine about the right to claim of judicial action,which is the advanced form in the camp of the right of action based on formal conditions.On the one hand,the right to win a lawsuit should be excluded from the contents of the right of action.On the other hand,we should also take the special status of the defendant in administrative litigation into account,look at the dynamic development of the right of action in the perspectives of the plaintiff and defendant,and emphasize that the rights of action between the plaintiff and defendant are not entirely consistent in the content and operation time,but form a number of layers.The third chapter is "the constitution about the right of administrative action:analyses based on the theory about layered right of action".The composition about the right of administrative action is to explore the issue about elements of the right of administrative action,which plays a pivotal role in judging the right of action,optimizing the allocation of judicial resources,filtering disputes,and providing relief for people who really need to be helped.There is a close relationship between elements of the right of administrative action and the doctrines about the right of administrative action's nature.Under the different doctrines about the right of administrative action's nature,there is a large difference between the content and elements of the right of action.This paper argues that we should choose "the theory about layered right of action" as the analysis tool for elements of the right of administrative action.This is based on two considerations.On the one hand,in the perspective of doctrine's background,"the theory about layered right of action" as a further amendment of the doctrine about the right of action based on formal conditions,is not only better than the doctrine about the right of action based on substantive conditions,but also overcomes defects of the doctrine about the right of action based on formal conditions.On the other hand,under other doctrines about the right of administrative action's nature,the corresponding elements of the right of administrative action are not complete.For example,the doctrine about the right of action from substantive law,the doctrine about the specific right of action,the doctrine about the right to claim of judicial action,and the doctrine about the dual right of action regard "substantive right-protected requirements" as an element of the right of action,which will deduce an unreasonable conclusion that at least one of the plaintiff's and defendant's right of action would be violated.The doctrine about the right of action and the doctrine about the constitutional-law right of action only regard "requirements to commence an action" as the element of the right of action,which will deduce an unreasonable conclusion that the plaintiff's right of action is still considered to have been realized even though the court dismisses the prosecution after acceptance.The doctrine about the right to obtain the substantive trial only regards "litigation right-protected requirements" as the element of the right of action,which obviously ignores the issue about commencing the right of action.Finally,according to "the theory about layered right of action",the first layer of the right of action is the right to sue,and the corresponding element of the right of action is "requirements to commence an action";the second layer of the right of action is the right to obtain the substantive trial,and the corresponding elements of the right of action are "the justiciability of administrative disputes","standing" and "the interest of litigation";the third layer of the right of action is the right to obtain fair trial,which lacks independent elements of the right of action.The fourth chapter is "the protection about the right of administrative action:discussions based on the theory about layered right of action".The protection about the right of administrative action should be carried out around the specific contents of the right of action.According to "the theory about layered right of action",the specific contents of the right of administrative action include the right to sue,the right to obtain the substantive trial and the right to obtain fair trial.Firstly,the protection about the right to sue is closely related to the recent reform about the case-filing registration system in China.Because above reform doesn't change the core of the case-filing review system,the reform vision,which is solving the problem that "the cases-filing is hard to come true" as well as protecting the right to sue,is finally lost.Therefore,it is urgent to make the case-filing registration system protect the right to sue by reducing "action requirement" and improving the related systems of complaint's review.Secondly,the protection about the right to obtain the substantive trial is closely related to the construction of litigation requirement's relatively centralized review procedure in China.In the present China,the relevance between the right to obtain the substantive trial and litigation requirement is easy to be ignored,the concept of the right to obtain the substantive trial is weaken,and litigation requirement as well as its relatively centralized review procedure is lacking.Therefore,under the above triple attacks,the protection about the right to obtain the substantive trial still has a long way to go.The urgent task is building a relatively centralized review procedure of litigation requirements.Finally,the protection about the right to obtain fair trial mainly involves two aspects:protect the parties to enjoy "the right to be judged by a fair court and a fair judge" and "the right to be judged in accordance with a fair procedure".In order to achieve the former,we should implement the principle of statutory judges,the principle of trial independence and the principle of neutral judges.In order to achieve the latter,we should implement the legal hearing right and the principle of equal weapons.