Behavioral Research On Administrative Assistance To Justice

The behavior of administrative assistance to the judiciary is essentially a kind of duty assistance behavior,that is,administrative organs or the organizations authorized by laws,regulations and rules exercise administrative powers and powers to help the judicial organs complete the judicial tasks.This kind of assistance has a broad practical basis,which is of positive significance for making up the jurisdictional vacuum caused by the division of power,guaranteeing judicial justice and solving disputes substantively.However,due to the lack of theoretical research,there are many contradictions and dilemmas in the system construction and judicial practice.In order to solve these problems,we must trace back to the source,clarify the basic theory,improve the theoretical system,and then guide the system construction and unify the judicial practice.The basic theory of this kind of assisting behavior involves many disciplines such as law,management and so on.Clarifying the basic theory is the premise of in-depth research on it.By analyzing the theory of one-dimensional democracy,the theory of division of labor and cooperation of state institutions,the principle of legal authority and the theory of collaborative governance,a basic theoretical system reflecting and supporting each other is constructed.On this basis,the core theoretical basis of this kind of assistance behavior is further refined,that is,the "limited domination theory" based on the special relationship between executive power and judicial power in this kind of assistance behavior.In this kind of assistance,the relationship between judicial power and executive power is developed on the basis of the general constitutional relationship,which is different from the "limited dominance" of the litigation superiority relationship.On the one hand,it emphasizes the judicial power's dominance over the executive power,and on the other hand,it recognizes the independence of the executive power,so it imposes restrictions on the power.The dominant power of judicial power manifests itself in the role of initiating procedure,determining the basic facts,guaranteeing and supervising the acts of assistance,and indicating the subject of assistance.The limitation is reflected in the limited content and effectiveness,and the judicial power can only affect the assistance behavior of administrative organs in a limited scope and degree.Based on this inherent "limited dominance relationship",a "request-decision" behavior pattern is actually formed between judicial organs and administrative organs.Different from the "command-obey" mode in the traditional theory of assistance,in this mode of behavior,the judicial organ cannot order the administrative organ to implement the assistance behavior.It is only the initiator of this kind of assistance behavior,and the administrative organ does not have the obligation of obedience.It is the decider and executor.The "limited domination relationship" between judicial power and executive power determines the formation of the "request-decision" mode between judicial organs and administrative organs,and the two are mutually external and internal,which together constitute the "limited domination theory".The construction of the basic theoretical system and the establishment of the theory of limited domination reshape the theoretical premise of this kind of assisting behavior.In order to analyze the problems involved in this kind of assistance behavior in a more specific way,it is necessary to investigate the relevant systems at home and abroad and clarify their operating status.The basic conclusion is that the system practice of administrative assistance to the judiciary exists both at home and abroad,and it has its own characteristics based on the special national conditions of different countries.In foreign countries,according to the different modes of the allocation of executive power,"judication-oriented assistance" and "administration-oriented assistance" have been formed.Although these institutional practices are not completely consistent with China in terms of form,they undoubtedly provide useful references.In China,this kind of assistance behavior is stipulated in various laws and regulations,which can be classified into two aspects: administrative system and judicial system.China's institutional practice has shown certain advantages,but also produced many dilemmas,which are mainly reflected in the contradictions and conflicts between "assistance according to law" and "administration according to law".On the whole,the reflection on the current situation of the system will force the theoretical research and the system construction further in-depth and perfect.Based on the goal of perfecting the theoretical system,combined with the above theoretical premise and institutional reflection,this paper systematically analyzes the concept,legal characteristics,legal relations,classification,external limits,behavior nature and behavior elements of this kind of assisting behavior.In concept,it is defined as: based on the relationship of legal assistance,because the judicial organ makes a request for assistance on duty to a specific administrative organ,the administrative organ provides assistance according to law.This definition of the concept is not the result of subjective fabrication,but is based on the analysis of the existing concepts and the legal characteristics and legal relations of such acts of assistance.At the same time,based on the new concept definition,this paper discusses the eight categories and their legal significance of this kind of assisting behavior,and compares and analyzes the boundaries of the concepts with other six pairs of similar behaviors.On behavior qualitative,through to the judicial practice and theoretical study found,based on the theory of "intention","behavior on the basis of theory","power theory","legal theory" and "effect theory" and so on different qualitative standards,formed the "judicial behavior","administrative behavior" and "ambiguous" three qualitative modes.However,these seemingly diversified qualitative criteria have internal logic unity,which can be controlled by "power function theory".The traditional theory of the role of power only emphasizes the role of judicial power and ignores the role of executive power,which is actually manifested as the theory of the role of judicial power and implies the qualitative logic of the theory of the predominance of judicial power.However,this qualitative theory violates the general relationship between state powers in the constitution,confuses the relationship between assistance law and litigation law,and causes many theoretical paradoxes and logic errors.Based on the "limited domination theory" proposed in this paper,in this kind of assistance behavior,the implementation of judicial power only initiates the assistance behavior of the administrative organ,and the operation of executive power is independent and plays a leading role.Therefore,the application of administrative power finally determines the nature of this kind of assistance.Based on this theory,this kind of assistance behavior is defined as administrative act,which includes administrative legal act and administrative factual act,and therefore belongs to the broad sense of administrative act.In addition,according to the principle of statutory authority,there is a stable correspondence between the executive power and the administrative organ.Accordingly,in principle,the nature of an act can be judged according to the nature of the subject(administrative organ),and in addition,it depends on whether there are special provisions in the law(such as the dual nature of the public security organ).To sum up,based on the analysis of the defects of the existing qualitative standards,in order to give consideration to accuracy and convenience,"subject of behavior + application of law" is finally determined as the new qualitative standard.This qualitative mode of administrative act has unique institutional advantages,but at the same time it will affect the internal structure and effectiveness state of this kind of assisting act,so it further investigates its constituent elements,legal elements and effective elements.To undertake the above theoretical analysis,this paper constructs the procedure system,responsibility bearing system and dispute settlement system of this kind of assistance.In the procedural system.The basic idea of "focusing on the larger and letting the smaller ones go" was established,that is,instead of designing procedures for specific assisting behaviors,principle-based procedural rules were constructed in the key links,including the starting procedure of judicial organs,the review procedure of administrative organs,the decision procedure and the implementation procedure.On the responsibility bearing system.Firstly,it expounds the premise of responsibility,and analyzes the legitimacy,concept,legal characteristics,boundary and setting of the obligation of assistance of administrative organs.In addition,the division of responsibility is made clear,and the scope of responsibility and the principle of liability of judicial and administrative organs are considered.At the same time,according to the different responsibility objects,the responsibility methods are typed and diversified.In the aspect of responsibility investigation,the author puts forward the idea of improving the responsibility investigation by strengthening the external relief force.On the dispute resolution system.First of all,this paper summarizes the types of disputes and points out that in this kind of assistance,only the disputes between the administrative organs and the judicial organs and the parties are actually caused by the assistance of administrative organs.Because of the implication of this dispute,the principle of "jurisdiction first" was established to avoid repeated jurisdiction.In addition,the administrative organs,judicial organs and the dispute settlement mechanism between the parties are respectively constructed.The former is mainly embodied in the coordination mechanism,including the coordination between the higher administrative organs and the political and legal committees.The latter is embodied in the introduction of the antecedent processing procedure and the innovation of the traditional relief system.Because of the particularity of this kind of assistance,the two traditional relief systems of administrative reconsideration and administrative litigation have been explored in the scope of accepting cases,the subject of litigation,the jurisdiction of litigation,the depth of examination and the procedure of litigation.