Reflection And Reconstruction: The Accuser's Affirmation Rule Of Administrative Litigation

"Administrative procedure law"has significant impact on the course of the rule of law in China. Since the enactment of"administrative procedure law", with more than ten years have passed. During these years, China has undergone major changes in administrative field. For a long period of time, all the administrative activities were done by the government, but now the government is not the only organization which carries on administrative activities. The state administration areas are becoming smaller. Public administration is becoming the trend. At the same time, more citizens begin to recognize their natural rights, calling for a change in their status under control administration model. They want to take the principal position in the administrative relationship. Facing with this changing situation, the rules which designed by"administrative procedure law"can not solve the problems properly. Of course, the bad rules include administrative litigation.The defendant as one of chief litigants in administrative litigation, because of the irrational confirmation rule of defendant which designed by"administrative procedure law"has become so complex: The law concept of"organization authorized by laws and regulations"is not clear, leading to its different understanding in the judicial practice. The case of Tianyong v the Beijing University of Science and Technology, the judges were willing to give a judicial review, for us it is a pioneering movement. In another case that students were ordered to drop-out because of pregnancy, the judges refused to give a judicial review. The rules of administrative litigation adhere to the standard source of power, resulting in actual controversy, so we can see a strange phenomenon that the defendant is not the organization which made the controversy decision. The administrative law theorists put administrative subjects and administrative litigation together, like the"arranged marriage"and this makes the confirmation rules of administrative litigation more complicated.In short, the existing rules of administrative litigation can not explain the changing administrative activities properly. Although it has the support from the development of judicial interpretation and judges, facing the current complex administrative practice, it is still struggling. All this shows that the present confirmation rules of defendant should be changed, it is unavoidable trend. In this paper, according to the exiting research result, the author attempts to reconstruct the rules of administrative litigation by comparative analysis, positive analysis and normative analysis. This paper body consists of three parts:In the first part of this paper, the author takes the normative text and judicial practice in the typical cases as the starting point, tries to discover defects of the current rules of administrative litigation and how these defects are caused; the judges how to think about the rule of the administrative litigation and whether they are developing the rule of the administrative litigation.In the second part of this paper, the author tries to clear the relationship between administrative subjects and administrative litigation. The author wants to note that bundle of administrative subjects and administrative litigation is not a good choice. They should play their respective roles.In the third part of this paper, according to the first two parts discussion, the author tries to reconstruct the confirmation rules of the administrative litigation, by considering the purpose of the administrative proceedings and the scope of the administrative litigation. At last, the author put forward the confirmation rules of defendant:"who acts, who is accused".The rule of"who acts, who is accused"may not be the best choice, but compared with the old one, I think the new rule is not the worst choice.