Research On Administrative Nonfeasance Litigation Relieve System

In China's administrative litigation cases, the administrative nonfeasance has occupied a large percentage. It has also been involved in almost all areas of administration. As one of administrative illegal activities, the administrative nonfeasance, which effects on the government's credibility, deteriorates the image of government, destroys the public and individual properties, has seriously influenced the law administration and process of constructing legal country. How to eliminate and punish the administrative nonfeasance has become the republic focus. "No relief would be no rights", the relief is to protect the rights of the necessary means to achieve.Therefore, the establishment of a litigation relief system to eliminate the harm of the administrative nonfeasance not only benefits the theory administrative law, but also solves the problem of the administrative enforcement and judicial practice.Administrative legal system over the process of development in most countries of the world by the executive is not as against the rights of protection, most of it has been included in the scope of administrative proceedings in order to protect the citizens have the ultimate right to judicial relief. The reason why the world should take a lot of energy to the establishment and perfection of its own administrative proceedings not as a relief system, was nothing more than the adoption of the system to protect the citizens, legal persons or other organizations of the legitimate rights and interests, safeguarding social order, the elimination of social development the unease. Because only the executive is not as litigation relief system in order to restore and compensate for damage to the legitimate rights and interests, checking the administrative and arbitrary, to ensure the realization of the administrative relative person reasonably be expected.At present, as a administrative nonfeasance litigation and other related relief system problem has been some concern of scholars, from a different perspective as a administrative nonfeasance litigation relief and improve the system, but also some of the arguments failed to meet the uniform. Author learn from administrative law through the research results of their predecessors, the integrated use of historical analysis, comparison, summed up a number of ways, etc., from the scope of the main right of appeal, to bear the burden of proof, the court trial basis, and many other aspects of depth in order to help China's administrative nonfeasance litigation relief system. The full text is divided into four parts."Administrative nonfeasance litigation relieve system "in the first part.The author believe that the administrative nonfeasance litigation as a relief to citizens, legal persons or other organizations, that the main acts of nonfeasance against their legitimate rights and interests of the people's court in accordance with the law to sue for its decision to confirm the law or executive order to make the main administrative actions, relative to the injury to the legitimate rights.It is the administrative nonfeasance litigation relieve system in the scope of the case, the prosecution time limit, the burden of proof, the type of decision very differents,not only for administrative nonfeasance as its own characteristics, in order to establish a administrative nonfeasance litigation relieve system."As foreign administrative nonfeasance litigation relieve system for the assessment and reference "in the second part.The author introduced the United States and continental lagal system, the executive is not as civil litigation relief system.Germanic litigation is the executive and the relative who requested a court order the executive to make specific administrative act, or to contain specific content of the specific administrative act of the proceedings. This types of judgments are reasonable and arranged in the form of executive power and judicial power relations, but also the relative giving people the right to full and effective protection and therefore worthy of our reference; At present, the administrative proceedings are not as affected by the case only has jurisdiction over the individual Interests, author believe that when the time is ripe need to learn from foreign advanced system so that the public interest against the administration and not as abstract as a non-executive into relief the scope of administrative litigation."China's administrative nonfeasance litigation relieve system of the status analysis"in the third part. Since the Administrative Litigation Law has been promulgated and implemented, china's administrative litigation has been a great deal of development, but also emerged a lot of cases, generally speaking, China's administrative nonfeasance litigation system have the following major problems : "The law provides, inter personal rights, property rights other than the specific administrative act, the people's courts generally inadmissible; of the executive authority does not fulfill the statutory duties of litigation, prosecution, the burden of proof are not clearly defined; the plaintiff, the defendant and a third person qualifications as well as the executive is not a review of court cases as a standard, are not clearly defined; the executive is not as a court case applies only to the ordinary procedure. Author thinks not as a result of china's administrative litigation relief system was mainly attributable to defects: the traditional Chinese legal culture, Chinese judicial system factors, not fully independent judicial power; China's administrative litigation law related becomes vacant, the principal is law is not perfect; the lack of trial basis, the way a single trial."China's administrative nonfeasance litigation relieve system is not as perfect" in the fourth part. Through the analyze of China's administrative nonfeasance litigation relieve system, author put forward a proposal to the problems.First, the expansion of the executive is not as a relief to the scope of the proceedings, namely the establishment of the abstract and the violation of public interest litigation administrative omission. Second, improve the administrative proceedings are not prosecuted as a condition to study the prosecution and the plaintiff to establish eligibility. Third, improve the administrative proceedings are not as distribution of the burden of proof can be generated according to the application as an ex officio obligations and obligations arising from two aspects to improve. Fourth, improve the administrative proceedings do not, as the scope of the review and review criteria. Fifth, set up the executive is not as summary proceedings. The author believe that only the rights and obligations as a clear, less controversial, less social impact of the executive is not as simple cases of summary procedure in order to apply. Sixth, the executive is not set up as a litigation conciliation proceedings. The author believes that as long as parties recognized in the people's court or the participation of some controversial administrative matters on a voluntary basis, through communication, to reach a consensus, thus able to resolve the dispute, you can apply to the proceedings.Fully mechanized, the author holds the view that the executive is not as conducive to the appeal not only the relative rights protection, and superior to other means of relief, but also the failure of other means can be used as a final safeguard, the system in China to establish and perfect with the promotion, will be able to to promote human rights protection system is relatively faster development. At the same time, the relative human rights are protected is more conducive to national stability and harmonious society, with the administrative nonfeasance litigation of security and supervision is more conducive to the effective exercise of executive power to ensure that the social costs to maximize the effectiveness of administrative resources.