The Determination Of The Scope Of Administrative Litigation In China

The scope of administrative litigation refers to the limits of authority of the people's court when it handles the administrative cases within certain range and the range that administration, compared with people, can appeal to the people's court. It is the unity of the scope of administrative protection compared to people's rights and the judicial examination of the administrative power of the administrative subject. As one of the three main procedural laws in China, Administrative Procedural Law is an important component of socialist legal system. Since it has been put into effect on October 1, 1990, according to the problems found in judicial practice, the supreme people's court has issued a series of judicial interpretation, regulation, opinions etc. in order to better cope with the new cases appeared in the process of social development and changes. These administrative litigation law and matched regulation play essential roles in protecting the legitimate rights and interests of citizens, legal persons and other organizations and facilitating the executive authority to execute in accordance with laws. But at the same time, many controversial problems are exposed. Among these controversies, the obvious one is the controversy about the narrow scope of administrative litigation. On the whole, expanding and reconstructing the scope of the administrative litigation is an inevitable trend. The author studies and analyzes the manner of writing, determination standards and existing problems of Chinese scope of administrative litigation. The focus of the essay is to put forward definite ideas and suggestions about reconstructing the scope of administrative litigation in China.The essay is divided into four parts:The first part analyzes the meaning,significance, and the certainty factors of the scope of administrative litigation.Chinese scope of administrative litigation learns lessons from the foreign experiences of administrative litigation legislation and combines Chinese reality. It is prescribed specifically in the administrative procedure law. The scope of administrative litigation not only rules the scope that the court handles the administrative case but relates to relief scope when the legitimate rights and interests of citizens, legal persons and other organizations are violated by the administrative act. Therefore, it is very important. The assurance of Chinese scope of administrative litigation is constrained by two factors: One is the aim of Chinese administrative procedure, and the other is Chinese current national conditions. The second part analyzes the manner of writing of the scope of administrative litigation and the existing problems in the manner of writing of the scope of administrative litigation.The manner of writing of the scope of administrative litigation can be divided into summarized type, lists type and hybrid type. The main problems in the manner of writing of the scope of administrative litigation: The first is the contradictions of the cohesion between lists and summary. The second is the omissions and disorder caused by the enumerated expression itself. The third is the disorder in standard of the listed seven behaviors.The third part analyzes the determination standard of the scope of administrative litigation and the existing problems in determination standard of the scope of administrative litigation.There are two determination standards of the scope of administrative litigation: One is the behavior standard. Administrative act can be divided into specific administrative act and the abstract administrative act. Chinese Administrative Procedure Law rules that the people's court accepts only the controversy caused by the specific administrative act. The other is the rights standards that are the standards of personal rights and property rights. Most of the administrative cases that Chinese people's court accepted are confined to the administrative disputes caused by the violation of relative personal rights or property rights. There are two main problems in the determination standard of the scope of administrative litigation: The first is that it is against the interests and rights of the party to limit the standard of the scope to specific administrative act. The second is that the scope is limited to personal right and property right, which is so narrow that is contrary to the legislative purposes of Administrative Procedure Law and inconsistent with the legislative spirit of the Administrative Reconsideration Law in China.The fourth part focuses on putting forward definite ideas and suggestions about reconstructing the scope of administrative litigation in China.As for the reconstruction of the scope of administrative litigation, firstly, the summarized style of writing should be adopted so as to clear the administrative disputes cases the court should accept in order to achieve the purpose of administrative litigation, scientifically define the scope of administrative litigation and avoid the phenomenon of leaving out. Secondly, the lists type can be adopted to exclude provisions for the case that is inappropriate for the court to cope based on the special administrative act under the special Chinese political system.As for the reconstruction of the scope of the legislative standard, the first is that the dual purposes of the administrative litigation legislation should be amended as the only purpose or the basic purpose, i.e. to protect the legitimate rights and interests of citizens, legal persons and other organizations. The second is that the constraints on the personal and property rights should be cancelled, making the scope of administrative litigation include all infringe upon the legal rights and interests of administrative behavior counterpart.The specific suggestions about the adjustment of scope of administrative litigation in China: The first one is to put the abstract administrative activity into the scope of administrative litigation. The necessity, feasibility and problems of putting the abstract administrative activity into the scope of administrative litigation are analyzed. The second one is to include the inside administrative behavior of legal activity in the scope of administrative litigation. The characteristics and classification of the internal administrative behavior and the reasons of including the inside administrative behaviors of legal activity in the scope of administrative litigation are analyzed. The third one is the justifiability of the quasi-administrative act. The expression form of Quasi-administrative act, the standard factor analysis of the scope of cases, the practice proof of the justifiability of the Quasi-administrative act and the Quasi-administrative act that should be included in the litigation range are analyzed.Through the exposition of this essay we can get the following conclusion: the scope of the administrative litigation is too narrow to adapt to the urgent need of protecting the rights and interests of citizens, legal persons and other organizations and promoting social legal process. The amendment of the Administrative Procedure Law should follow the trend and principle of expending the scope of administrative litigation. The legal standard of the scope of the administrative litigation should be amended as the summarized administrative behavior, and the abstract administrative action, the legal act of the internal administrative behavior and the quasi-administrative act should be included in the scope of administrative litigation. The expansion of the space of administrative litigation in coping with cases endows the citizens, legal persons and other organizations full administrative and judicial relief and thus truly realizes the aim of protecting the legitimate rights and interests citizens, legal persons and other organizations.