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A Research On The Limitation Of Action In Administrative Litigation

Posted on:2006-09-19Degree:MasterType:Thesis
Country:ChinaCandidate:T ShenFull Text:PDF
GTID:2166360182466326Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
Limitation of action stands for a legal system defined as when a certain factual situation passes through a legal period of time, it will generate certain legal effects. Administrative Procedural Limitation of action is a legal system defined as if a client who has the right to sue but declined his right, such factual situation will lead to loss of legal right or loss of legal protection after a certain legal period of time. A clarification among such notions as limitation of action, administrative limitation of action, scheduled period, and acquisitive prescription are prerequisites to understand and construct administrative procedural limitation of action.The related practices in western countries as well as in Taiwan are examples for us to learn about the system of administrative procedural limitation of action. However, such examples have limited effects, since different countries are unique in their own situations. Therefore, the research on administrative procedural limitation of action should be based on regulations in present China. Since administrative procedural limitation of action is a legal system based on Administrative Action Unchangeable Theory and Right-aid Theory, the client's right should also be protected when guaranteeing administrative efficiency. Presently, the administrative procedural law defines the limitation of action as "a limitation of time to start a lawsuit", which suggests if the client has missed the time, he will consequently lose such right. Such definition attempts to regulate the diversified administrative limitation of action into one form, without considering any categorization of administrative action in forms, or considering those non-administrative actions in administrative procedural field for action, thus fails to look at the categorization of administrative lawsuit, or offer substantial right protection for the related parties. As a consequence, the dual goal of letting administrative procedural supervising agencies behave according to law, and protecting the rights of citizens and corporations is largely undermined.Based on the analysis of the problems of present law, the author provides suggestions for revisions of administrative procedural limitation of action under the Administrative Procedural Law. The specific suggestions are as follows: under the codes of Administrative Procedural Law, such definition of limitation of time for lawsuit should be subsidized with a right-protective limitation of action. When the client decides to start a lawsuit which is out of limitation, he will not lose the right to start a lawsuit, but lose the legal protection. The court will still have right to supervise the administrative action- if the fact is affirmed, the court should announce the related party illegal, but will not adjudge a compensation; meantime such regulations based on differences of administrative lawsuit types and administrative actions should be adopted to define the length and legal effects of administrative limitation of action.
Keywords/Search Tags:Administrative Litigation, Limitation of Action, limitation of time for lawsuit
PDF Full Text Request
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