Research On The Non-lawsuit Administrative Execution

Administrative subject executes administrative management to organizeand manage the social affairs, after they performs specific administrative actson the social affairs, the administrative relative person must carry out theobligation of this specific administrative acts in order to guarantee therealization of the goal of administrative management. Generally, most of theadministrative relative person can perform self-consciously. In the case thatthe relative person does not perform the obligations self-consciously, torealize the goal of administration, the compulsory execution will occur.Non-lawsuit administrative execution is the main mode of administrativecompulsory execution in our country.The non-lawsuit administrative execution refers to an action that the court,according to the application of the administrative subject or the person whohas the rights, compels administrative relative person to perform theobligation determined by the specific administrative acts performed byadministrative subject. if, in the legal term, administrative relative personneither prosecute nor perform their obligations. The non-lawsuitadministrative execution takes on some features as administrativeness ofexecutive basis, universality of executive object, compulsoriness of executivemanner and so on. The start of the non-lawsuit administrative execution mustconform to some legal rules and conditions as below: the applicants who is anadministrative subject that performs concrete executive action, or the personwho is given the rights by specific administrative acts;The specificadministrative acts has taken effect and got its content that can be executed;the person to be executed by application is an obligator determined by specificadministrative acts;the person to be executed by application does not performhis obligation in the term determined by specific administrative acts or inadditional term appointed by executive subject.There are two completely different views about the nature of thenon-lawsuit administrative execution between the theorists. One viewconsiders that, the non-lawsuit administrative execution is an administrativeaction;the other holds that, the non-lawsuit administrative execution is ajudicial action. In my opinion, the scholars holding different ideas, actuallycome to a conclusion by analyzing the non-lawsuit administrative executionfrom different perspectives and in different stages. The author considers thatwe cannot make a single cognizance to the character of the non-lawsuitadministrative execution. The non-lawsuit administrative execution actuallyincludes two stages, i.e. deciding stage of execution and concrete operatingstage of execution. In the former stage, the non-lawsuit administrativeexecution has the character of administrative nature, and in the latter stage, ithas the character of judicial nature.At present, the formation of non-lawsuit administrative execution systemis not the product of legislator's scientific design, but the graduallydeveloped result of the law and regulations. At the same time, thenon-lawsuit administrative execution is insufficiently developed in theory. Itis not the fact that scholars' study of non-lawsuit administrative executionahead has significant value in practice which then instructs the practice ofjudicature, but that non-lawsuit administrative execution occurs ahead inpractice and later becomes paid attention to by scholars. The formation of itis not through rational design, which is the main reason causing manyproblems of non-lawsuit administrative execution system in practice.As is said above, the non-lawsuit administrative execution system isneither formed in scientific design of legislators nor in rational design ofscholars. The reason of its formation lies on many realistic factors such as thetransformation of the government system and function, the choice oflegislation, the need of protecting legal benefits of relative person,improvement of the status and prestige of public court and so on.In contemporary world, there are two large modes of compulsoryexecution: one with execution of administrative subject as the dominant andthe other with judicature as the dominant. The former has two representativessuch as Germany and Japan, and the latter has three as America, England andFrance. Generally examining the two large modes of compulsory execution,harmony and balance of democracy and efficiency is the theme of a countryunder the rule of law. Every country tries to give attention to both sides andunite them as possible as they can.The non-lawsuit administrative execution has a variety of shortcomings inpractical operation. First, in itself, there are problems such as the conflict ofadministration and jurisdiction, obscurity of status and responsibility of courts,uncertainty of effectiveness of administrative acts etc. Second, in legislation,there are problems such as lack of guiding rules of uniting the legislation andinstruction, lack of aiding means, confusion of compromise in execution andso on. Third, in practice, there are problems, e.g. imperfectness ofdevelopment influences the executive efficiency, increases the burden ofcourts, unsatisfactory social effect, insufficient guarantee of relative person'sright and so on.Since there exist so many shortcomings, the theorists hold two differentviews about the necessity and rationality of the non-lawsuit administrativeexecution. One is against its necessity and rationality, and the other is for. Iagree with the latter view that there must be a basis for the occurrence andexistence of a system must have some certain foundation and must adapt wellto the social condition at that time. We cannot obliterate its achievementcompletely and negate its rationality just because of its shortcomings, insteadwe should continually improve it until a better system occurs and takes theplace of it when conditions are mature.Since non-lawsuit administrative execution has many shortcomings, weshould continually improve it. First, in itself, on the basis of maintainingcurrent non-lawsuit administrative execution system, separate the examinationand execution function between courts and administrative bodies, i.e. thecourts are only responsible for examining specific administrative acts, and theexecution of specific administrative acts is completely up to administrativesubject who applies to execute. Second, in legislation, make unifiedcompulsory execution law, establish guiding rules of administrative execution,set up hearing system, found perfect aiding means, and in the light ofadministrative bodies' nonfeasance, build administrative public prosecutionsystem and perform executive compromise within certain limits.In a word, considering both administrative efficiency and benefits ofrelative person is the same goal of compulsory execution in every country, andalso one of focuses of the Administrative Law Schools. How to find thebalance between and to benefit both sides is a question that the non-lawsuitadministrative execution has to face henceforth.