The Relationship Between Judicial Power And Executive Power In The Administrative Procedure

The question of the relationship between executive power and judicial power, are from the theory of "separation of powers",and the limitation of judicial power, set up on the basis of the theory of "separation of powers".The so-called "the boundary of judicial power",which in fact means talking about the scope of the power to be able to run.boundary of judicial power is subject to a lot of the principles of the norms and constraints,these principles include aspects of both macro and micro aspects,from a macro perspective,the discussion of the issue of judicial power is limited by "the principle of power","rights-based principles","the principle of judicial independence" and "judicial neutrality";then from the micro side,the discussion of the issue of judicial power,is limited by such as "the principle of sophisticated","the principle of non-executive" and "legal principles".From a series of principles,when we look at the administrative proceedings legislative style of the world,we can see that the countries of the whole world usually have the state act,the legislative and executive discretionary acts excluded from the scope of judicial.Because of late study about the administrative procedure,then the various theoretical issues have not gone through thorough discussed,the administrative style legislation of our country has been constrained by the practice of administration, corresponding,the administrative law theory had not played very full role in the legislation.The administrative practice and the development process of administrative legislation are greatly restricted by the state affairs of our country.In other words,our country because the theoretical study of the administrative law were the introduction and many of which were from the Western countries,but not from its own national condition,at the same time,we have not set up in line between our national conditions and the theoretical system of the administrative law.On the one hand,the state condition cause the theory of administration of the Western in China long-term "acclimatized",on the other hand,led the China's own administrative law theory long-term stagnancy.The performance of our country at a specific legislation is mainly on the scope of the administrative proceedings,the scope of China's administrative proceedings is constrained by the administrative practice,rather than the impact of administrative law theory.The scope of administrative proceedings, whether it is from the Legislative Council or from the specific content model is concerned,are marked with the stigma of the practice of administration.The legislative model about the scope of administrative proceedings taken by our country,was a "summed up+listed+exclude" mode,which can be said that was a more unique model,which is determined by historical conditions at that time,and ever have played a positive role on,the first,it can defined the scope of the subject case more clearly,and a strong operating;the second,by this model,it can be carried out by a more stringent limit and reduce conflict and doubts,avoiding overloading because of lack of judicial resources,and there is conducive to set up the administrative litigation system successfully which embodies the principle of "first set up the system,then gradual improvement";the third,with some room for gradually expanding development.But it now seems that the rigidity of the drawbacks of this model is more and more obvious,which only can be expanded with very limited space,and can not fully protect the right of people's appealing,so it can not adapt to the continuous development of human rights guarantees.Therefore,to fully protect the right of appealing,a more satisfactory model is "abstract summary+specifically excluded" mode.This mode first make the abstract summary,and then specifically excluded the case which is inadmissible in practices from the mode,on the one hand, it is performed simple and clear,which avoid the existing controversy of mode about criteria for the classification;on the other hand,it is more in line with the practice of our country habits.Moreover,this model is in fact a more open mode,which can greatly expand the scope of the proceedings of the type of case.Unlike the existing models as relatively rigid,limited to relief the personal rights and property rights.When specific study the scope of administrative proceedings we can see that the Western countries in general exclude the acts of state,legislative and executive discretion discretionary acts from judicial review,but strict to limit the scope of these acts,which is very different from ours,from the existing provisions of our country,on the one hand,it showed no respect or sense of protection of procedural rights about person.This is mainly manifested in the court proceedings on the request of the parties of the "accepted" or "unaccepted" and "rejected the deal on repeated acts of the parties and the lawsuit filed against." However,this kind acts of "accepted" and "unaccepted" or "rejected" are closely related with people's Constitution and civil rights-right to appeal.Proceedings is in fact a performance about "right to appeal", according to the relative rights and obligations,if people have some right,it must be the existence of corresponding obligations."unaccepted" behavior in fact is an act of infringe upon the procedural rights of the parties.On the other hand,the performance is affected by the case of our country,the scope of administrative proceedings for people to judicial relief is rather narrow scope,only limited to personal rights and property rights,and for other infringing act of rights by the executive power,it was not to be relief.Even though a large number of judicial interpretations of the scalability to expand,but judicial interpretation is not a substitute for legislative texts. In fact the act of expansion will lead to the "legitimacy" question.Moreover,specific issues are excluded from judicial review,at the same time,there is no strict limit on the overall implementation,but in fact,the approach to "one size fits all" is not scientific,because in a variety of macro-which seemingly can not be judicial review may contain different kinds of categories,and different types of administrative acts have different significance of administration to the administrative relative people, such as acts of administrative guidance which can be broken down into "regulative administrative guidance" and "suppressive administrative guidance",as their relative significance to people is obviously a major difference.Therefore the approach to "one size fits all" is likely to excluded many of the matters which need to review from the scope of judicial review.This article also focused on discussing the issues about our country's the scope of judicial review,the conclusions are:all possible disputes should be included in the scope of judicial review,but first of all,people want to be assured "procedural rights", because the party's "procedural rights" are the key to start the proceeding of judicial review;then it has sense to discuss the substantive rights that may be involved in the rights of protection;if can not to initiate judicial proceedings,that is to say that the procedural rights of the parties don't realize,then,for any discussion about the rights of entities can only be counted as a "talk".At the same time,this paper shows that through multi-paper,whether acts of state or acts of abstractive administration, whether internal administrative acts,or acts of mediation,arbitration,whether the acts of administrative guidance,or acts of criminal justice and so on,they all should have the scope of strict restrictions,or,any act,may be included in the scope of judicial review.In the final of the article,in order to address the needs,it also briefly discussed the issue of "the judicial power can or not act as the executive power",the corresponding conclusion is,whether inside of litigation or outside of litigation, whether it is on the time,or the space,not the existence room about the issue that judicial power can or not act as executive power.From the characteristics of the article,the paper mainly at the following,the first, from both macro and micro principles to limit the boundaries of judicial power,which set up a basic framework for the discussion about the boundaries of judicial power; the second,in the discussion of substantive rights,it also refer to the Court act of "inadmissible" and" inadmissible",and as then a starting point,adding to the relative between rights and obligations,the article specific discuss that it has much impact on entitling and protecting the procedural rights;the third,in discussing the issue of "judicial power can or not act as the executive power",from both outside and inside of the count proceedings,as well as the running order between the executive power and judicial power,and at the same time partly refer to the types of administrative proceedings and other aspects,which have the article more reasonable and smooth.From the point of structure,this paper is divided into two parts,the first part is an introduction,the mainly discussion is the theory origin of the limitation of judicial power;the second part of the body is mainly focus on how to see the judicial power's supervision over the executive power from the boundaries of judicial power.The main text is divided into five "plate" for discussion,the first "plate" focuses on the definition of judicial power and executive power and characteristics;the second "plate" is easy and specify to say the meaning of the limitation of judicial power at first,then specific discussion of what principles constrain in the limitation of judicial power,mainly from the principles of macro and micro aspects,and then discuss proceeding from these principles that the state acts,legislative acts and administrative discretion discretionary acts of which should be excluded from the scope of the limitation of judicial power;the third "plate" was mainly to discuss the case of China's administrative proceedings by the scope of the model from the specific content of legislation,from the procedural rights to carry out all aspects of a specific analysis;the fourth "plate" was mainly and simply to discuss the principles of "the legitimacy of the review" and "rationality review";the fifth "plate",as the end of the work,it also is relatively simple discussing the problem of the "judicial power can or can't act as the executive power" from the operating characteristics and the running sequence,as well as the different status at some aspects between the outside litigation and the inside litigation,between the executive power and judicial power.