Discussion On Consummation Of The Scope Of Judicial Review In Administrative Litigation

The scope of judicial review in administrative litigation(here we call it scope of judicial review)is so important an issue in administrative law that it not only determines the scope of judicial review but also the level of judicial protection of citizen fights in a country.The research on the scope of judicial review has important theoretical values in further consummating the Law of Administrative Litigation of the People's Republic of China and shortening the distance with advanced countries and strengthening the protection of citizen rights and establishing a modem country ruled by law,etc.The existing problems of current Chinese law on the scope of judicial review are as following:The abstract administrative act,(administrative legislation)can't be reviewed by court;the scope of suable interests is so limited that only when the formulated interests are influenced could the administrative counterparts sue,and it is not suable when interests not formulated by law are influenced;the indictable administrative act is limited by the categories listed by law;the other administrative acts that abuse the discretion can't be supervised by court except for the obviously irrational administrative act;the final adjudication of administrative organ is not suable;the internal administrative act is not suable;a single person can't sue for the welfare of the country or the public,and illegal or improper administrative act of environment protection, government's economical act,market government,financial expenditure are not included into the scope of judicial review;whether the administrative confirmation,punishment by school's discipline,administrative contract,and administrative fact act are suable is not formulated in law.So the current law is far from satisfying the requirements of protecting the citizen's rights,nor does it meet the gradually enlarging tendency of the scope of judicial remedies in many countries and the requirements of WTO regulations of applying judicial supervision on the administrative act.As a result,it is urgent to enlarge the scope of judicial review.The main body of this thesis is concerned on the relative problems about why and how to enlarge the scope of judicial review and expounds from the following viewpoint: the possibility and necessity to include abstract administrative act into the scope of judicial review;the necessity to include the following rights except the rights of property and personality,such as political rights,labor rights,rights of rest,culture rights,rights of education into the scope to be accepted by the court;the necessity to undergo judicial supervision on irrational administrative discretion,final adjudication of administrative organ,internal administrative act;the necessity to build litigation system to permit to sue for public welfare;whether the administrative confirmation,punishment by school's discipline,administrative contract are suable;whether administrative fact act,such as administrative guide,public warn and administrative prediction should be included into scope of judicial review.This thesis has eight parts.The first part is the summary of the scope of judicial review.It is mainly concerned on its definition and classification.The author expounds the problems existing in current Chinese law through comparison with the relative legislation and judicial practice in other countries.The second part discusses the possibility and necessity to include abstract administrative act into the scope of judicial review from the following viewpoints:the requirements of linking up the Law of Administrative Review of the People's Republic of China;the requirement of administrative litigation itself;the judicial review on abstract administrative act will not influence the basic political system in China,it is unfit according to the rule of "rule by law" if administrative organs legislate law and apply it by themselves meanwhile,most advanced countries have included abstract administrative act into the scope of judicial review,the requirements of WTO regulations,the requirements to settle the conflicts among the laws and regulations.The third part discusses the necessity to include the administrative act infringing the rights not only of property and personality but also other rights into the scope of judicial review from the following viewpoints:the requirements to defending the authority of the Constitution,the requirements of protecting citizen's rights of democracy, freedom and personality;the possibility provided by relative law to enlarge the scope of judicial review and include administrative act infringing the rights formulated by Constitution and other laws into the scope of judicial review.The fourth part discusses whether the administrative act not included in the scope of judicial review in the Administrative Litigation Law of People's Republic of China is absolutely not indictable.The author puts forward the following views:the improper administrative act should be included into the scope of judicial review viewed from the practices of many countries;the final adjudication by administrative organ and internal administrative act should be included into the scope of judicial review because judicial remedy owns more fairness and authority than administrative remedy.The fifth part discusses the necessity to constitute system of litigation for public welfare.The author puts forward the following points:the legislation should include illegal or improper administrative act infringing public welfare,such as illegal or improper administrative act for environment protection,government's economical act, market government,financial expenditure,into the scope of judicial review.The sixth part considers whether several kinds of particular administrative act,such as administrative confirmation,punishment by school's discipline should be included into the scope of judicial review and gives following opinions:since these acts can influence counterpart's obligations and rights under some conditions,they should be included into the scope of judicial review.As to administrative contract,whether put it into the scope of judicial review is a question of choosing of legislation,unless the administrative contract has voluntary article to be executed by administrative organ(in this condition, the contract should be included into the scope of judicial review of course).The seventh part discusses whether the administrative fact act such as administrative prediction,public warn,and administrative guide should be included into the scope of judicial review,and give author's opinions:it is hard to find a criterion to definite the concept of"administrative fact act" or to decide under what conditions can they should be taken into the scope of judicial review.In other words,it is a question to be settled by judge's discretion.The author also analyzes several kinds of administrative acts.In the end,the author discusses the existing obstacle in consummating the regulations on the scope of judicial review and expresses his hope.