Examination Of Legality Of Administrative Action In Civil Litigation

This article is to discuss examination of the legality of administrative action in civil litigation. During the process of a civil litigation the party may sometimes argue against the legality of administrative action which a civil act is founded. So,whether the specific administrative act is legal or not becomes a prerequisite for the inquisition and finding of common pleas. The legality of administrative acton in civil litigation means the civil case in court to take resovlving the administration problem that a certain party concerned disputes as a promise,and the administrative's problem isn't the key problem of the party concerned controversy, but it decides the end result of the case.The existence of all things in the world always have the root ,then why the association of administrative and civil action remain at high level in China's judicial practice is also have some reasons. I think the reasons of this problems was mainly due to the expansion of executive power, the mutual penetration of civil and administrative law and sometimes some of the flaws of administrative action found through in the civil procedure. At the same time, the essential of accessorial evidential administrative problem is the problem of relationship between the bonding force of administration behavior and the evidence effectiveness. The evidence effectiveness request reviewing the concrete administration behavior,but the bonding force of concrete administration behavior request everybody to subjected to it to control and can't be treated as common evidence.As to this question, the author introduces and analyzes some oversea judicial experience. Britain and the United States emphasize the autonomy of the jurisdiction, they claim that the civil court can examinate the legality of administrative action in common pleas. There are different from the performance in civil law countrys.In French,The subsidiary of administrative problems is divided into previous questions and pretrial questions. According to different problem, the court take different approach; In German, when they faced preliminary questions ,the civil court must be suspended civil cases and diverse the preliminary questions to another court; the Taiwan region of China basically followed Germany Practice; while the civil court took a path of compromise in Japan. But there is common place in those oversea is that the civil court can deny the effectiveness of the administrative action what have major flaws.Become the limitation of the code of civil procedures of the administrative litigation, either litigation procedure can't solve the case with the civil problems and the administrative problem. There are some different opinions in both theory and judicial practice. Some scholars consider the court can't examine the legality of administration act in civil litigation; some scholars think the court should have authority to do with it, and other scholars think the court can investigate administration behavior by proof form. Take a vide view of our country's judicatory practices, because the law of civil procedures and administrative procedures didn't rule definitely to this problem, and the judicatory of Supreme People's Court explains are conflicting, make the way of doing in the practice multifarious. The result which is resulted in is that the cases get solved slowly, and the results conflict each other.The author proposes my own opinions of this problem what based on upwards analysis. Above all, there are some difference in the examination on administrative behavior administrative actions and civil action. Furthermore, establishing the legality of administrative action must keep to determinate principle in civil litigation. In the end, the author concludes: First, in principle, abstract administrative action can not be reviewed, while the specific administrative action was reviewed as evidences. Abstract administrative action could not be reviewed because it was treated a basis on judicial conduct and can't be reviewed in the administrative procedure. Secondly, the specific administrative action can be divided into administrate action with major flaws and administrate action with hidden flaws. Administrate action with major flaws can be annulled directly by civil adjudication tribunal because the bonding force of administrate action has its limits. Thirdly, administrate action with hidden flaws was reviewed differently in different situation. The author differentiate administrate behavior which is examine formally or materially.