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On Intercession Of Administration Litigation

Posted on:2008-10-02Degree:MasterType:Thesis
Country:ChinaCandidate:J W ZhouFull Text:PDF
GTID:2166360242459957Subject:Law
Abstract/Summary:PDF Full Text Request
The publication and implementation of Administration Procedural Law in our country is no doubt an important thing of our socialism legal construction and an important milestone of democracy construction, which has showed modern legal spirit. It is a successful legislation. Because we lack long term and adequate administrative trial as the base and have no legislation experience of administration litigation, even at that time the code of civil law itself was in the condition to be modified, we could not deny the law is not mature in legislation technology, some stipulations are too ideal with deficiency on operation. Stipulating that it is not applicable to accommodate when People's Court hears administration case lies in it. With the development of administrative law and administrative procedural law in our country and abundant administrative trial experience of nearly 20 years, modifying the stipulation on Administration Procedural Law not suitable for intercession has become mature. Intercession on administration litigation is an important problem to be faced when modifying our Administration Procedural Law. Therefore, exploring intercession of administration has great theoretical and practical meaning. By using the method of connecting theory and practice, borrowing relevant legislation abroad and our administrative trial practice, by the concept, features, natures of administrative litigation, necessity and meaning to establish intercession of administrative litigation, applicable conditions of intercession of administrative litigation, the author has provided the opinions on establishing intercession system of administrative litigation in our country, aiming at promoting that our administrative litigation system will have greater influence on the law construction.The body is divided into three parts.The first part explains the concept, feature, nature of administrative intercession and the distinction with reconcile. Based on borrowing the concept of intercession, the author suggests we should use administrative intercession but not administrative reconcile in our administrative litigation by the analysis of intercession and reconcile, and has made limits on the concept of administration litigation intercession. Administration litigation intercession refers to that during the procedure of administration litigation, the parties concerned will negotiate the dispute equally based on their own willingness under the presentation and coordination of the people's court, and then they will reach an agreement and end the procedure. Then, the author has made an explanation on the features of administration litigation intercession connecting with the features of civil litigation intercession. The features of administration litigation intercession are: 1) The target of administration litigation intercession is administrative dispute to be indicted; 2) the handling right exerted by the parties concerned in the administration litigation has less freedom than that of in civil litigation; 3) the scope of administration litigation intercession is limited with the feature of limitation; 4) administration litigation intercession is not the necessary procedure of administration litigation. It has no legal characteristics. Finally, compared with the nature of civil litigation, the author has made a discussion on the nature of administration litigation. 1) The intercession in administration litigation is a kind of litigation behavior, which is a part of administration procedure; 2) intercession of administration litigation is a kind of entity legal behavior, which is the agreement on the rights and obligations stipulated in the public law between administration and the other administrative party.The second part explains the necessity and meaning to establish administrative litigation system in our country. The author has first made an analysis on why there should establish intercession system of administration litigation in our country. 1) The transformation of modern administrative function needs to establish administration litigation intercession; 2) administration litigation itself needs administration litigation system; 3) establishing harmony society of socialism needs administration litigation intercession; 4) the entering into WTO of our country needs administration litigation intercession. Then the author has made an analysis on the meaning of establishing administration litigation system in our country. The establishment of administration litigation has not only improved the administration litigation system in our country, but also has great influence on the political and economical life of our country. 1) It is good to establish harmony society of socialism; 2) it is good to protect legal benefits of citizen, legal person and other organizations completely; 3) it is good to promote administration to use their power according to the law and increase the approval on the government by the social members; 4) it is good to increase the effectiveness of administration litigation; 5) it is good to achieve the requirements of multiple solution of administrative disputes and end the case in true meaning.The third part has summarized the revelation of establishing administration litigation intercession system in our country based on the investigation on administration litigation systems abroad and in Taiwan. The author has provided the assumption on the establishment of administration litigation in our country. The author thinks that the conditions to modify unsuitable stipulations about administration litigation intercession system has matured with the development of our Administration Litigation Law and its theory plus administration trial experience for almost 20 years. First, The investigation on the administration litigation intercession has been made in abroad and Taiwan.1) Typical country using continental law as Germany has been investigated of its administration litigation intercession; 2) administration litigation intercession system in Taiwan has been investigated; 3) revelation on the establishment of administration litigation intercession in our country has been summarized based on the investigation. Second, analysis on the applicable conditions of our administration litigation intercession has been made. 1) Concerned parties in the administration litigation should have handling rights on the target of litigation. If the party has no handling rights on the items to be adjusted, no agreement will be reached among them. And then the intercession will not be established; 2) application of administration litigation intercession should not violate the law, public benefit and should not offend legal benefit of others. It should not violate the content reached in the intercession agreement between the parties concerned according to the requirements of the law and legal stipulations; it should not violate the requirements of sacrificing the public benefit of administration litigation intercession; it should not do any harm to the legal benefit requirements of others. If it is needed to impose burden on the third party outside the case, the participation of the third party in the administration litigation should have the consent, otherwise, the behavior will be regarded as being illegal. Third, explanations have been made on the basic principles, by which administration litigation intercession should abide. That is administration litigation intercession should follow willingness, equality and legality. Fourth, exploration on the mode of administration litigation intercession has been made. In our country, there should establish a kind of administration litigation intercession mode of connecting intercession with trial. Fifth, the influence in the administration litigation intercession by the judge has been limited. 1) With the parties concerned complying with the administration litigation intercession as the precondition, the judge will provide negotiation, chance for conversation and occasion timely. Provide them with equal platform for conversation. The judge has the function of providing media and communication.2) Control on the procedure of intercession. 3) Advice on intercession plan. If necessary and possible, the judge could provide intercession plan. In accordance with the mastering of basic true of the case and opinions applicable in the law, the judge could provide advice on intercession content and authoritative opinion for the parties concerned to negotiate and discuss. 4) Examine the intercession agreement.
Keywords/Search Tags:Administration
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