Studies On Defendants In Administrative Litigation

As a major component of administrative litigation,regime of defendant in administrative litigation has an important value.But for lacking and delaying studies in Chinese legal research,and deficiency in legislation and judicial interpretation,rules on affirmation of defendant in administrative litigation confront new challenges,so that it is necessary to have a deliberate review on the subject.On the basis of analysis and comment on recent research,this article, concentrates on affirmation of defendant in administrative litigation, discusses conception of defendant in administrative litigation,the principle of affirmation of defendant in administrative litigation, application of the principle to litigation,and the major problems occurring in application of the principle of affirmation on defendant in administrative litigation in turn.and make advices for legislation to the perfection of regime of defendant in administrative litigation.First of all,this article retrospects existing studies on the subject,and makes comments from both positive and negative grounds,pointing out their insufficiencies that:existing research concentrating excessive on this subject and there are similar to each other.Though following to steps of recent legislation and judicial interpretation,existing research lacks theoretical basis,and postpones to the litigation practice.Though some researchers recommend new rule of affirmation of defendant in administrative litigation,the content of proposed new rule was lacking of further research.Basing on comparative analysis and inheritance of existing conception,the author introduces the redefinition of the conception of defendant in administrative litigation in such a way:a defendant in administrative litigation,who litigated by a person subject to an administrative action,is a subject of administration who exercise one's administrative power to make an administrative action on one's own name that affect or infringe the substantial or procedural rights of a person who subject to the administration.Following the further promotion in political system and continuous transformation of governmental function and power,there are more and more governmental power separated from the governmental agency and authorizing to social organizations,which are not including in subject of administrations,for the social management's sake.The process of affirmation of defendant in administrative litigation should comform to some kinds of principle.The existing principle can be generalized as principle of subject of administration,which means that only a subject of administration can be a defendant in administrative litigation.But this principle is deficient in applying to new condition and new problems occurring today.The main pitfall of the principle is that a lot of administrative action,which affecting or infringing the substantial or procedural right of persons who subject to administration,was excluded to the judicial supervision,which left blind of legal remedy to legal rights of persons who subject to administration.An approach to the resolution of the problem mentioned above is transformation of the principle of"who acts,who should be the defendant".The key that determine the transformation's success or failure in application is that whether we can confer new content,comparing to content of the principle in tradition,to the new principle.This article focuses on disclosure of inmost content of the new principle in a more complete and deeper way.Acts in the principle are neither the legal acts in general,nor the administrative actions,but have a specific inner content and external range.In the first place,they refer to administrative actions or actions in public law;In the second place,acts should be suitable in administrative law or public law.Next,this article focus also on application of the principle of"who acts,who should be the defendant".Only relating to legal practice,a principle is a live principle.There are many problems occurred in application of regime of defendant in administrative litigation,which are accountable for aspects of legislation and judicial interpretation or aspect of litigation practice. Basing on above studies,this article makes advices for perfection of the regime of defendant in administrative litigation.