The Research Of "The Intersection Of Administrative Litigation And Civil Litigation"

Goethe once said,if one person only understand the native language,is not really understand the native language.Department law is not a desert island isolated from the rest of the world,but together with other department law forms a “diversified and interwoven structure of expectation structure in daily common life”.The internal differentiation of law and the functional differentiation of society go on simultaneously.The intersection of administrative law and civil law is the inevitable result of the re-differentiation of the internal functions of the legal system.In other words,the “crossover phenomenon” is one of the manifestations of the “legitimacy intersex” between the administrative law subsystem and the civil law subsystem within the legal system.However,based on the trend of specialty differentiation of department law,each department law has its own “painting a prison”.As a result of “law is divided under the world”,a “professional trough” has been formed between departments that make laymen stop,and the research field of department law has to be limited to the narrow scope of professional fields.The research of“fragmentation” has lost the ability to focus on the integrity of law,and the research of“The intersection of administrative law and civil law” has not been spared.According to the process of dispute generation and settlement,the problem of “crossover” can be investigated from two aspects : legislation and judicatureinvestigation.These three layers of nesting together constitute a three-dimensional and dynamic“crossover phenomenon”.Compared with the existing research methods of“planarization” and “pan-procedural”,this paper tries to go deep into the internal structure of the problem of “The intersection of administrative law and civil law”,and to understand the interaction between administrative law and civil law,administrative power and civil rights,and judicial power and administrative power in the overall sense.And try to break down the cognitive obstacle in the problem of “The intersection of administrative law and civil law” in the aspect of theoretical cognition.And provides a clear thinking for the “The intersection of administrative law and civil law” in the level of trial practice.First,starting from the case samples,this paper analyzes the “interference” of civil litigation to administrative litigation and the “interference” of administrative litigation to civil litigation in the trial practice,and explores the root of the “The intersection of administrative law and civil law”problem.The core of the problem is the determination of the order of administrative and civil litigation,which involves how the court uses the procedural resources of “administrative litigation” to identify the relationship between civil rights and obligations.On the whole,the categorization of“The intersection of administrative law and civil law” is in a state of confusion.Based on the relationship between administrative dispute and civil dispute,the“The intersection of administrative law and civil law”can be divided into primary and secondary,close and distant,intervention mode,form and substance,and confirmation,formation and adjudication.Taking the type of administrative act itself as the standard,the problem can be divided into three types.However,the above-mentioned research can not meet the needs of the research.Luhmann's legal system theory provides a new paradigm to deal with this situation.The whole legal order including administrative law,civil law,criminal law and other department laws is regarded as a “huge system” of law,and administrative law,civil law and other department laws are regarded as “subsystems” of the legal system.The question then turns to how the civil law system deals with the interference from the administrative law system and how the administrative law system deals with the interference from the civil law system.With the aid of luhmann's legal system,to the inherent differences between the administrative law system and civil law system,and explores the seal of the administrative law system and civil law system respectively and the openness of the understanding,found that the administrative law system and civil law system program the underlying logic of different administrative law system and civil law system the difference of“legal/illegal” codes meaning,identify the structure of the administrative law system and civil law system coupling,and finally understand the administrative law system and civil law system on the way to interfere with each other.Second,to investigate the causes of“The intersection of administrative law and civil law”from the legislative level.The essence of the problem is the relationship between administrative law system and civil law system.The relationship between the administrative law system and the civil law system is firstly embodied in the cooperation and competition between the two systems.The substantive relationship behind the problem is embodied in the different provisions of administrative law and civil law on the same civil right or the same civil legal relationship.The differentiation of administrative law and civil law and the function of administrative law and civil law are the same right and the same legal relationship,which is the important reason for the problem at the legislative level.The division of administrative law and civil law system is the historical inevitability of the development of public law and private law.The division of public law and private law has gone through the stages of conception division in ancient Rome,stagnation in the Middle Ages,revival in modern times and crisis and fusion in contemporary times.The public law of private law has a specific theoretical basis and historical background.The autonomy of private law itself has natural limitations,it can not completely deal with a series of problems such as monopoly and alienation of autonomy of will caused by the autonomy of private law in the civil law system,so it must be solved with the help of other resources outside the civil law system.Introducing administrative law,intervening in the autonomy of private law and reshaping civil rights may be an inevitable choice.The combination of public and private law expands the living space of civil rights in the legislative level and extends the living space of civil rights to the field of public law.In the sense of modern law,the problem is mainly embodied in the relationship between administrative power and civil rights in the fusion of public and private law.This relationship can be investigated from the code and outline relationship between the administrative law system and the civil law system.Although administrative law system and civil law system on the whole share the same “legal/illegal” codes,but the “program” based on their internal system,two law subsystem “legal/illegal” output by the codes only to keep the consistency in form,its inner meaning is decided by each subsystem internal program logic.The codes and program between the administrative law system and the civil law system are not commensable,so the interaction between them must be carried out through structural coupling.The structure of the coupling between the civil law and administrative law system device is divided into four kinds of civil law system coupling device.Civil rights are legal“migration” through the coupling of administrative law system and civil law system.From the history of right's emergence and development,right itself contains “legitimacy” elements,and needs to be implemented and guaranteed by external force——power.From the point of view of system theory,right consists of legitimate elements,normative elements and practical elements.The normative elements include both the normative elements of civil law and the normative elements of administrative law.The requirements of normative elements are reflected in practical elements,and rights are bound to be related to specific administrative acts and administrative law norms.The complex structure of the right and the relationship between administrative power and civil right have sown the seeds of the problem.Third,from the judicial level,to investigate the cause of the problem.The procedure is not only the field in which the problem is fully developed,but the procedural structure of the problem is three-dimensional and dynamic.In the proceedings,the judicial organs have fulfilled the task of observing and assigning “legal/illegal” codes to rights by using the program of the administrative law system and the civil law system.The administrative litigation in China is called the mixed litigation of subjective litigation and objective litigation,which is more inclined to objective litigation in actual operation.Through the review of the legality of the administrative act,indirectly achieve the protection of civil rights.China's civil litigation is a typical subjective litigation,the effectiveness of civil rights is the core focus of the court.In litigation,the court is easily misled by the “first-order observation” of the parties.The erroneous observation of the procedure leads to the dispute over the order of the procedure in the trial practice,which further reduces the researchers' vision to the scope of the procedure.The development of the problem in the judicial field can be divided into the level of law application and the level of fact determination.The problem of law application can be investigated from two aspects: the normative effect of administrative norms of right allocation on civil legal relations,and the normative effect of administrative norms of right protection on civil rights and obligations.The predicament of fact determination mainly lies in the“superstition” to the certainty of administrative act.When it crosses the boundary between the administrative law system and the civil law system,its form and scope of effectiveness may be reduced due to the “rejection” effect of the legal system.The effectiveness of administrative act in the civil law system depends on the specific norms and academic consensus in the civil law system,and is closely related to the function of administrative act and the structure of civil disputes.Fourthly,the exploration of breaking the trial barrier.In China,the trial mode of “The intersection of administrative law and civil law” cases can be divided into three kinds:combined trial,incidental trial and separate trial.However,none of the models works very well.By comparing the trial modes of countries such as France,Germany,Britain,Japan and so on,the following systems are enlightening: the principle of mutual absorption between administrative proceedings and civil proceedings,the establishment of jurisdictional dispute resolution bodies and the rule of negation of the validity of invalid administrative acts in countries of common law system.However,the existing domestic trial mode,as well as the reference of foreign research results and institutional mechanisms,can only be improved from the outside,but cannot solve the internal problems.rom the perspective of legal system theory,the dilemma of procedural choice mainly comes from legislative vacancy and judicial loophole.The abstract principles set by the Civil Procedure Law and the Administrative Procedure Law cannot provide effective guidance for trial practice.The judicial interpretation,with a strong color of rights and interests,fails to take seriously the functional division between the administrative law system and the civil law system,and fails to pay sufficient attention to the inherent logic of the outline of the administrative law system and the civil law system.Therefore,it is necessary to explore the entity-centered procedure selection method.Through the theory of legal system,weighing the choice between administrative and civil law systems,identifying who is assigned to the “codes” of administrative and civil law systems,In the “first order observation” of the parties and“second-order observation” of the court,found the value of “observation” of legal system.