Research On Justiciability Of Exercise Of Sports Association Power

Sports association is a kind of mediate organization and a typical kind of a self-regulatory organization.Practically,the association exercises a part of public power.Like other powers,sports association power is also facing the possibility of being abused.Therefore,the power must be regulated by law.While,at the present time,in our country,the main way to restrict the sports association power is internal remedy.The way mainly includes sports administration reconsideration and internal arbitrtion holded by sports association.These measures have serious drawbacks.From the angle of combining foreign related theories and native legal resources,this article will examine the exercise of sports association power and advocate that,in our country,judicial remedy should be provided to restrict the exercise of sports association power and the exercise of sports association power shoule be brought into administrative litigation in order to better protect our citizen's sports' rights and promote the development of sports.The author believes that it would be of theoretical significance and of practical significance to research the justiciability of the sports association power in China.This topic firstly manifest its meaning of administration law.The administrative legal relation between sports associations,which play the role of manager,and their members has not gotten enough attention in administrative law circle.Therefore,this article have certain theoritical sense.At the same time,this article puts forward that public power should be a factor which is used to judge the defendent qualification.This is meaningful for our country's administrative law.Secondly,this topic has the significance of sports law.As a interdisciplinary,whether the sports law science is an independent or not has not reached a consensus.Our country's law circle pays little attention to sports law.And some specific problems have not gotten intensive study.So it is mesningful for perfecting the sports law science to study the judicial remedy for the sports association power.The practical meaning of this topic is that,to a great extent,our country's sports circle is out of the legal control.Whether bringing sports into justice or not and the way to solve unfair phenomena which exist in competitive sports have become a problem which catches the common attention of sports circle and law circle.So,it is helpful for regulating sports association power,protecting administrative relative party's rights and promoting sports ruled by law to do research on justiciability of exercise of sports association power. The main viewpoint of this essay is that,in our country,exercise of sports association power should be brought into scope of administrative litigation.For this reason,this essay will begin from the concept of sports association,and precisely define sports association power,then examine the current situation of the remedy of exercise of sports association power and its drawbacks.Based on evaluating related theories and cases of legal remedy for the behaviors of this kind,the necessity and avilabilty of bringing our country's sports association power into judicial examination will be analyzed,and,furthermore,some specific countermeasures for bringing exercise of sports association power into the administrative litigation scope will be put forward.According to the train of thought above,this essay includes five parts.The first part is introductory theory.At first,concept and features of sports association will be introduced.Sports association is a kind of mediate organization and a typical self-discipline organization.Its features include professional,self-regulation,monopoly, mediation.As the research object of this essay,the concept of sports association is narrow.It just means a domestic sports association rather than international sports association.Then the essay will classify the actions of sports association,namely sports service,representation of sports interests and sports management.Sports management is divided into exercise of public power and private administrative actions.Thus,the focus of this essay will be derived,which is the exercise of sports association power.At last,for the foundation of discussion followed,the exercise of sports association power will be introduced in details.The author will emphatically explicated the differences between power origination and prvite administrative actions.The sports association power is conferred by law or entrusted by government or derive from the contracts between sports association and its members.There are three criterions to differentiate public power exercise and prvite administrative actions,which are criterion of public interest,criterion of legal basis,criterion of importance.The second part analyzes our country's current situation of the remedy for exercise of sports association power and its drawbacks.First of all,the author will enumerate a typical case happened in our country's sports circle,which was Changchun Yatai football club vs. CFA in 2002.The case ended with rejection decided by court.From this case,we know that exercise of sports association power has riot been brought into administrative litigation.In our country,internal settlement mechanism which includes sports administrative reconsideration and sports association internal arbitration.Jurisdiction,external arbitration have not gotten involved.In succession,the drawback of handling mechanisms for exercise of sports association power will be analyzed.The two handling mechanisms are self-judgement and lack of external control.The members' interests are prone to be damaged.Sports administrative reconsideration is often invalid because of the administration of sports association.While the internal arbitration of sports association is lack of openness and neutrality,and its procedure is too simple.The third part will introduce the situation of judicial remedy for exercise of sports association power in western countries.By analyzing theories and briefly introducing cases,the author will elaborate the situation of judicial remedy for exercise of sports association power in the USA,Germany,France and so on,in order to make clear universal law of dealing with such behaviors.For judicial remedy for exercise of sports association power,the court can interven the bilateral disputes caused by exercise of public power.In these countries,exercise of sports association power can be sue.There is no barrier in both theory and practice.At the same time,the method of comparison will be adopted to analyse the similarity and difference of judicial remedy for exercise of sports association powe between the two geneologies of law.The similarity is that the amount of sports litigation is increasing.The difference is that the premise of judicial intervention is different.By introducing the method adopted by western countries,the author hopes to benefit the relating legislature.The forth part will analyse Justiciability of exercise of sports association power from the angle of necessity and avalibilty.From the angle of necessity,there will be three items listed,which are the method for protecting opposite person's sports rights,control on sports association power,judicial supervision over the development of our country's sports association.The difficult part is the discussion of control on sports association power.The sports association power derives from law or entrusted by government or derive from the contracts between sports association and its members.The former two are national power.The last one is social power.It is no doubt that national power should be controlled.What is need to place emphasize on is that social power is a kind of power and should also be controlled.For the avalibility,the author will discuss it from three angles.The first one is that the charter of international sports association doesn't exclude judicial examination to power exercise mentioned above.The second one is to introduce the evolution of doctrine of special power relation in western countries.The special power relation has not been absolutely unactionable.The last one is to make clear that our country's sports association is qualified for defendant in administrative litigation and this is the focus.In our country,it is not reasonable to put subject factor as the criterion to decide whether a subject has the qualification to take administrative judicial proceedings or not,since our country's subject of administration just includes administrative organs and Organizations.that are authorized by laws and regulations.But many intermediary organizations have the public power because of contracts.Our country shoule put power factor as the criterion and bring exercise of sports association power into the scope of judicial examination.The fifth part mainly discuss the specific ideas of bring the exercise of sports association power into administrative lawsuit.Firstly,the author will discuss specific institutions for sports administrative lawsuit.The first is to clarify the court's jurisdiction.The author thinks that judicial proceedings taken against nationalwide sports associations should be under the jurisdiction of Beijing higher people's court,judicial proceedings taken against provincial sports associations should be under the jurisdiction of provincial higher people's court, judicial proceedings taken against municipal sports associations and the sports associations of lower administrative grades should be under the jurisdiction of intermediate people's court.The second is that the author thinks that there shoule be sports divisions established in each higher people's courts and some intermediate people's court.In its jurisdiction,sports developes very well.System of people's assessors should be applied during sports trial to make up for judge's lack of sports professional knowledge.Secondly,the author will discuss that judicial examination to exercise of sports association power should be controlled.Because sports affairs have specialized nature.Under the pre-condition of judicial examination,the autonomy of sports association should be protected.The premise of judicial examination is that internal remedy of sports association is exhausted and judicial jurisdiction is excluded by lawful and valid arbitration item.The scope of judicial examination should be restricted by proceeding inspection and technical affairs.