On The Enforcement Of Administrative Judgments

Nowadays, the enforcement of administrative judgments is a vital issue that faces courts, and the issue of enforcement caused by the accused administrative organ's failure in a suit is the particularly difficult point. Some administrative organs with great powers deliberately avoid or refuse the performance of a valid administrative judgment, which extremely influences judicial authority and unity. This thesis analyzes and discusses the present situation of difficult enforcement of administrative judgments, and its reasons and strategies, and at the same time investigates the root of difficult enforcement of administrative judgments, i.e. the relationship between the judicial power and the administrative power, deems that solving the difficult enforcement of administrative judgments cannot succeed unless a substantial reform is carried out in a large scale. Finally, focusing on the situation of difficult enforcement of administrative judgments, the author proposes relevant strategies from such perspectives as legislation, justice and so on.This thesis is divided into three chapters:The first chapter, which is a general illustration of the enforcement of administrative judgments, firstly discusses the definition of the enforcement of administrative judgments, and regards the enforcement of administrative judgments as such a legal activity that the enforcing organizations of the people's courts legally take compulsory measures upon the valid administrative judgment, when the obligator fails to perform the judgment within the time limit, in order to realize the valid administrative judgment. Secondly, the modes and developing tendency of enforcing administrative judgments are illustrated. The modes of enforcing administrative judgments mainly include the following ones: the Britain mode, the American mode and the French mode. Each mode has many similarities with others, but owns particular characteristics as well. From the perspective of the developing tendency in the world today, more national courts are empowered with the compulsory enforcement upon administrative organs, and all national courts'modes of enforcing administrative judgments are switching from the single mode of administrative supervision to the today's mode of connecting administrative supervision with compulsory enforcement. Thus, the author thinks the judicial power without the might of enforcement is incomplete, and if the people's courts do not have the right of compulsory enforcement upon administrative organs, the compulsory characteristic of laws cannot be performed, its judgment cannot be valid, and hence the dignity of the administrative law-governing will be weakened. Finally, this thesis distinguishes between the enforcement of administrative judgments and the administrative enforcement, between the definition of the compulsory administrative enforcement and that of the non-compulsory administrative enforcement, and points out that the enforcement of administrative judgments is the core of the administrative enforcement system, and without focusing on the national situation of the judicial and administrative practice in China, on the basis of carefully investigating the enforcement of administrative judgments, the administrative enforcement system cannot be reconstructed.The second chapter is divided into two parts, the first part of which introduces the history and present situation of the enforcement of administrative judgments in China. In 1990, Chinese Administrative Procedure Law is officially implemented, and as a result, it is possible for the public to accuse the power, and the administrative procedure system is officially established. At the beginning, the difficult appeal and trial of the administrative procedure is the focus of both theoretical and practical circle and the issue that needs urgent solution. As the practices and theories of the administrative procedure advance, the issue that it is difficult to enforce the administrative procedure is more obvious, and is even inclined to become the bottleneck of developing the administrative procedure, and hence many issues emerging in practice needs urgent solution. The author mainly summarizes five issues. Firstly, some administrative organs with great powers lack the respect and the sense of submitting to the judgments of courts, neglect regulations, and deliberately avoid or refuse the performance of the obligations regulated in valid written laws. Secondly, the affording ability of the administrative organs subjected to enforcement is limited by their own insufficient administrative funds, and hence the people's courts cannot enforce judgments. Thirdly, in the Chinese Administrative Procedure Law, the regulations upon enforcement is lax, those upon the means and scope of the enforcement is not detailed, and thus the enforcement of the people's courts has no law that can be observed, and it is difficult to take effective enforcing measures. Fourthly, the bad spiritual and moral quality of some operational staff impedes the enforcement of the case. Fifthly, the work of enforcement lack perfect system of restricting and supervising the enforcement. The second part analyzes the reasons why it is difficult to enforce administrative judgments in China. Focusing on the numerous difficulties in the present enforcement of administrative cases in China, the author makes an in-depth research, and mainly analyzes six reasons. Firstly, the economic imbalance and the deficiency of local economy cause the impossibility of enforcing some cases related to the administrative procedure. Secondly, the administrative power continually expands and even surpasses the judicial right, so when the people's courts deal with cases, they have to consider the attitudes of the administrative organs. Thirdly, there are lots of deficiencies in the self-construction of the people's courts. On one hand, judges in the people's courts are not highly qualified, and the personnel's quality cannot keep up with the need of professional development; on the other hand, the supervising system is not effective. Fourthly, the system restriction is the direct reason of difficult enforcement. Over the years, China implements the fiscal system of sub-stove dinner, the funds of the court at all levels are determined by the government at the same level, and the courts' finance is emerged with local finance. Therefore, most of time local courts enforce the laws and execute judicial right from the perspective of serving local economy, instead of focusing on the unity and solemnity of national law-governing. In addition, as for the personnel system, both the judicial administrative functions and staff of the courts are elected, authorized, dismissed or appointed and removed by the local authorities at all levels. In practice, the organizing and personnel departments of local party committees and governments actually enjoy the right of recommending and appointing the principal persons responsible for the courts at relevant levels, and it is due to that kind of affiliating and attaching relationship of power structure that local courts cannot resist the local administration's interference. Fifthly, citizens'weak legal sense is the fundamental reason of difficult enforcement of administrative judgments. Sixthly, the backward material conditions in the present China are another reason that influences the difficult enforcement of administrative cases. The backward developing level of productivity determines that at present, it is difficult for China to create favorable material conditions for the effective legal enforcement with sufficient funds and property, which directly influence the normal implementation of Chinese laws.The third chapter is divided into two parts, the first part of which, from a macroscopic perspective, analyzes the reforming ideas of resolving the persistent ailment of difficult enforcement of administrative judgments. From the view of the people's courts, the theoretical methods of reform should be switched into the advancement of judicial reform. Without advancing the judicial reform, improving the law-governing progress in China, and altering the present power structure, the judicial authority cannot be indeed established, and hence in practice by the opportunity of finding specific methods and paths of overcoming the difficult enforcement of administrative judgments, the judicial authority should be further established. The second part involves the author's design of constructing a system to resolve the issue of difficult enforcement of administrative judgments. Firstly, it illustrates that as for overcoming the drawbacks of the present system, and establishing a completely new system of enforcing administration, the breakthrough is to enact an Enforcement Law of the People's Republic of China so as to reform the enforcing system, and make the establishment of administrative courts as the pioneer of judicial reform in China. Secondly, focusing on the deficiencies and drawbacks of the compulsory enforcement of the administrative procedure in China, the thesis proposes a basic mending idea: strengthening the compulsory enforcement upon administrative organs, and increasing the measures and types of the compulsory enforcement upon administrative organs, in order to sufficiently show the equity of the compulsory enforcement of the administrative procedure, and dramatically strengthen the authority of judicial judgments in the aspect of enforcing measures.