On Issuses Of Administrative Withdrawal System

Administrative litigation system is very important in the system of administrative law, with the economic and social development, its role has become increasingly more important. But for the political, historical, cultural and other reasons, the withdrawal rate of administrative litigation cases in each court has been high, and it has appeared the phenomena of non-normal withdrawal which scholars say.This article empirically analysises the withdrawal of administrative cases of all country, some provinces and cities firstly,then combines with the actual conditions of China and at the premise of learning the advanced experience of foreign countries, measures to improve the judicial status , looking forward to further improve the system of the administrative withdrawal. This article includes five parts:The first part is the empirical study about the situation of administrative litigation withdrawal.In order to a comprehensive understanding of the administrative withdrawal situation,this article collects the national data on the status of administrative withdrawal cases,and statistics of cases in some areas. The first section cards the administrative withdrawal cases,to find out the change in the overall trend;The sceond section through analysis of judicial practice summarizes characteristics of administrative withdrawal.This article argues that administrative withdrawal has following features: withdrawal rate is high on the overall level; the cases which the plaintiff withdrawals because of changed specific administrative acts are less and less ; coordinated withdrawal of the court is into the mainstream and judicial policy has great impact on it.The second part is an overview of administrative litigation withdrawal system and the analysis of withdrawing review system. Combining with above empirical Analysis,the author specifically address the basic theory of administrative withdrawal.The first section mainly elaborates the concepts, nature, type and condition, function and role of administrative withdrawal system,and the difference with the civil litigation system;The second section is the analysis of withdrawal review system,including its characteristics and purpose, function and meaning,and judicial practice through cases. This article argues that withdrawal review of the court is key in the system of administrative withdrawal,but it is not optimistic about the judicial practice of withdrawal review.The third part analyses the problems and reasons of administrative withdrawal system.In the premise of mastering empirical situation and basic theory, the author analyse the problems of administrative withdrawal system,arrounding the situation that plaintiffs withdraw charges.This article argues that administrative withdrawal system has following problems: In legislation, the conditions that the plaintiff applies for withdrawal are incomplete and the restrictions that withdrawal can not be re-charged is defect; In the administration of justice,trial court is sufficiently independent, the right of withdrawal review is virtual and order granting withdrawal is a major way.Then the author comprehensively analysie the reasons of the problems from the legislative, judicial, institutional and other aspects.The fourth part is a comparative study of administrative withdrawal system. Section I is the introductions of extra-territorial administrative withdrawal systems, including Britain, the United States, France, Germany, Japan and China—Taiwan; Section II is comparisons of withdrawal system, detailly analysing the same and differences between extra-territorial administrative withdrawal systems and the reference to China.This article argues that there are three points worth learning: first, giving the plaintiff the right to re-sue;second, the contents of the withdrawal which the court reviews are explicit;third, fully protecting the right of the plaintiff's withdrawal from the withdrawal period, scope, methods, etc.The fifth part is the perfect of administrative withdrawal system.This article argues four principles to improve the system of administrative withdrawal: strengthening the independence of the judiciary, respecting the right of disposition, persisting the procedural justice and pursuiting litigation efficiency.Then proposing specific measures of improveing administrative withdrawal system from legislation, judicial independence, the the system construction etc.