Research On Some Problems Of Judging The Case Of "the Administration Did Not Take"

The government by law essence lies in the government authority to be under the effective control as well as the private right obtains the effective safeguard.In recent years along with the legislation gradually consummation and the people law consciousness enhancement, in particular the administrative proceedings thorough development, the citizen, the legal person and other organizations sued the administrative organ not to take case quantity the rise, the administration did not take has caused the people as well as the social widespread attention from all walks of life as the phenomenon. Administration did not take as one authority and the responsibility come apart seriously the administrative illegal condition, runs counter with the government by law administration request.Not only the research on the administration did not take is advantageous to the consummation administrative law theory system, moreover regarding in the administrative legislation, the administrative law enforcement and the administrative proceedings the people's court correct trying administration case also has the necessity instruction function.This article stands in the judicial practice angle, tries certain questions to the administration did not take as the case to conduct the research.This article mainly divides into five parts.First part of general theory about administrative not achievement.The author to the administrative not achievement implication, the characteristic, the constitution important document and so on the elementary theory carries on the analysis and the limits as the voluntary type, carries on to the present theoretically each kind of difference clarifies, builds the foundation for as follows discussion. The second part of its characteristics and the scope as the judicial examination.The article first induces the main characteristics of the administration did not take cases from the judicial practice angle, then introduces the scope stipulation of"Administrative Procedural law"to the administration did not take case, and on judicial practice in administrative proceedings document scope in elimination item whether belonged the question has not carried on the discussion as the judicial examination scope.The third part of prosecution deadline of the administration did not take cases.The article after has analyzed the question of the prosecution deadline how to begin reckoning, points out the administration should not be suitable"Certain Explanations"as the prosecution deadline the 41st 1st section related 2 year stipulation quite to be appropriate.The fourth part of presents evidence the responsibility in the administration did not take cases.In did not take in the lawsuit, presents evidence the responsibility also inevitably to be different with the general administrative proceedings.The article introduces the assignment of presents evidence the responsibility in the administrative proceedings,and proposes own some viewpoints about the plaintiff and the defendant sharing present evidence the responsibility on the administration did not take in the case.The fifth part of the decision form from the administration did not take cases.First introduces the decision form of other countries did not take in the case, next discusses the fulfillment decision and confirmed decision of our country did not take in the case.Through to analyse the condition, the applicable scope, the content of the fulfillment decision to be suitable, think the limit about the court decision defendant fulfills the legal responsibility to be possible to profit from the German theory of"the referee conditions are ripe", and elaborates the relations between the fulfillment decisions and confirmed decisions.