On Jurisdiction's Supervision And Restriction For Administrative Power In Our Country

The power system of western modern countries is mainly made up of legislative power, judicial power and administrative power. The three kinds of power separately undertake different functions in governing country, and they are related and influenced with each other during the process of fulfilling functions and form national power structure together. In the system design for state power in our country, system of the people's congress is established by breaking through the deficiency of western traditional system of Separation of the Executive and taking the principles of popular sovereignty, rule of law, limited government etc. as core ideology. Administrative organ and judicial organ not only divide labor with individual responsibility but also coordinate with each other. At the same time, people's court is endowed with the power to supervise and restrict administrative organ's administration according to law by the law of our country. The framework of constitutional government in China is reasonable in terms of theory and in line with the operating reality of state power in practice, therefore it has great superiority. However, some problems are also exposed at the same time along with historical development and social transformation, which need be improved.Our country's administrative power has the nature of expansion and abuse which is the same with western countries', the expansion of administrative power, on one hand, means the establishment and safeguard for the necessary order required by socioeconomic development, on the other hand, it means that the menace for invasion probably received by people's freedom and right is increased, at the same time, it also has the possibility that people who grasp administrative power misuse their powers so as to violate people's freedom and right because of the weakness of human. Speaking from this meaning, it is necessary to supervise and restrict administrative power. Because of the neutrality of people's court, the independence for discharging functions and powers as well as the finality and authority of judgment, jurisdiction's supervision and restriction for administrative power has optimal effect. The value and function of jurisdiction's supervision and restriction for administrative power in our country are continuously deepened and extended with the increase of state and public's cognition as well as social development. Firstly, the further perfection for the framework of constitutional government can be promoted and the process of development of socialist legal system in our country can be impelled; secondly, the healthy operation of administrative power can be promoted; thirdly, the lawful rights of social public can be protected and guaranteed; fourthly, economic development can be promoted and social stability can be ensured.The supervision and restriction function of people's court are realized mainly through the judicial review for the validity of specific administrative behavior of administrative organ. The above judicial review mainly includes two aspects: firstly, in the cases of administrative proceedings, administrative organ is regarded as defendant, and its legality for specific administrative acts is investigated by people's court through opening a court session; secondly, in non-lawsuit administrative execution cases, administrative organ is regarded as execution applicant, which applies for people's court to put teeth in specific administrative acts that have already been legally effective, legality for the specific administrative acts is investigated by people's court so as to reach a verdict for deciding whether the implementation is allowed or not. In the two kinds of cases, the scope and strength of investigation for legality of administrative acts of administrative organ is different, in the cases of administrative proceedings, the investigation made by people's court for legality of specific administrative acts is all-around and in-depth, involving in various aspects, such as administrative acts'right as principal, procedure, entity, legal ground etc.; while in non-lawsuit administrative execution cases, the judicial review made by people's court for legality of administrative acts is moderate review, only the situation which is obviously illegal and damages the lawful right of person subject to enforcement is not allowed to be implemented by the judgment.Compared to western countries, jurisdiction's supervision and restriction for administrative power in our country has advantages: in the judgment mode for administrative cases, the judgment mode which combines adversary as main part and inquisition as supplement is adopted by our country, it not only brings into play the subjective initiative in each side of persons involved, prevents court hearing from becoming the monodrama of court for the formulaic procedures caused by the simple inquisition of people's court, but also prevents the situation from getting out of control caused by automatically carrying out persons involved adversarial judgment or the situation that can't complete confrontation restricted by the individual ability of persons involved from appearing, the function of people's court is brought into play, thus it has bigger superiority than western countries. Compared to the prerogative writs system of Britain and the United States as well as the semi-public and semi-secret hearing and documentary trial system of France, the just claim freedom of person involved and public court hearing system in our country also has superiority for guaranteeing the timely and effective relief of the rights of counterpart. At the same time, compared to western countries, jurisdiction's supervision and restriction for administrative power in our country also has many shortcomings.Firstly, from the establishment of people's court, in our country, administrative cases are judged and supervised by the tribunal set up by people's court, court is hampered and restricted to a great extent by local administrative organs because of the existing management system of personnel, financing and properties in our country, which goes against jurisdiction's effective supervision for administrative power. Secondly, when the functions of supervision and restriction are exercised by our country's court, the maintenance and safeguard for administrative organs should also be emphasized. However, the corresponding assorted systems and measures don't keep pace, and there are also no clear provisions for how to straighten out the relationship among maintenance, safeguard as well as supervision and restriction in the law, so it is very difficult to grasp in practice. Thirdly, the scope of jurisdiction's supervision and restriction for administrative power in our country only refers to the legality for the specific administrative acts of administrative organ, in the courts of western countries, such as America etc., except for including the legality of specific administrative acts, the supervision and restriction for administrative organ's administration according to law also include the legality examination and the examination of administrative rationality for abstract administrative acts, such as legislation etc. The performance of the function of people's court is restricted by the narrow scope of jurisdiction's supervision and restriction for administrative power in our country which go against with supervising and promoting administrative organ's administration according to law. Fourthly, there are mainly seven kinds of standards of the judicial review for current administrative acts in our country. The seven kinds of standards are further divided into the standard of administrative act's legality and the standard of administrative act's rationality in academic circles, among which, the latter only refers to the two conditions of misuse of authority and serious injustice. The standards of judicial review in western countries are usually connected with legal tradition, concept of litigation etc., however, flexible and different standards of judicial review are adopted in legal issues and matter of fact, which have already become common trends. For our country's standard of judicial review, it need keep pace with the times on concept and improve on provisions.The intrinsic advantages of jurisdiction's supervision and restriction for administrative power in our country should be developed, and in connection with the existing problems and shortcomings, the mechanism of jurisdiction's supervision and restriction for administrative power in our country should be established and perfected from the following aspects: firstly, the relationship between jurisdiction and administrative power should be sorted out, on one hand, the relationship between the two functions of the maintenance as well as supervision and restriction for administrative organ's administration according to law should be handled in correct way by people's court, on the other hand, jurisdiction should break away from the counter restriction of administrative power; secondly, jurisdiction's function of supervision and restriction should be strengthened starting from deepening court system reform; thirdly, the modes and methods of jurisdiction's supervision and restriction for administrative power should be innovated, such as establish and perfect the system of chief executive's responding to litigation in court, the evaluating mechanism of administrative organ for losing a suit, the evaluating mechanism of the specific administrative acts of non-lawsuit administrative execution cases that are not granted to implemented, excellent evaluation and popularization system for administrative organ's administration according to law, coordination mechanism of administrative proceedings, set up summary procedure in administrative proceedings etc.