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The Theoretical And Systematical Development Of The Qualification Of Plaintiff In China's Administrative Litigation

Posted on:2010-12-07Degree:MasterType:Thesis
Country:ChinaCandidate:N DongFull Text:PDF
GTID:2166360302966415Subject:Law
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Administrative litigation system is a product of the development of political civilization and the civilization led by law, also an important symbol of civilization process. The qualification of plaintiff is a main eligibility to start the administrative proceedings, and allow the court to hear his or her dispute into substantive trials. The clarification of the qualification criteria of plaintiff and the maturity of this system are required by the constant development of our country's political, economic and social life. Expanding the scope of accepting cases and reducing the qualification of plaintiff is a developing trend for the administrative proceedings in various countries. This paper makes an approach to the theory and system of the qualification of plaintiff, and provides several recommendations to its structuring in China's administrative litigation combining with the problems encountered in practice. The whole text mainly includes three parts that are the introduction, the main text, and conclusions, with the main contents as follows:The first part is the introduction. This part first introduces a few cases, which leads to the subject of this study, namely, the theoretical and systematical development of the qualification of plaintiff in China's administrative litigation.The second part is the main body, including four chapters:Chapter I is about the basic theory of the qualification of plaintiff in administrative litigation. First, it is the interpretation of the general theory about it, which defines the content of the qualification of plaintiff in administrative proceedings. The qualification of plaintiff is a main eligibility to start the administrative proceedings, and allow the court to hear his or her dispute into substantive trials. There is also analysis on the relationship between plaintiff and the qualification of plaintiff, the scope of accepting cases and the qualification of plaintiff respectively. The plaintiff is a person, who prosecutes to the court in his or her own name, and only a qualified plaintiff is entitled to start the administrative proceedings for substantive hearing; the scope of accepting cases is in interaction with the qualification of plaintiff, and they are in an interactive development with the same minimum standards in our country. Second, it comes to the interpretation of the abandon of the reflection interest theory in administrative proceedings and the rise of the theory of right-obligation practical implication. Reflection Interest is a concept that corresponds with the public right. If the public law norms order the executive authorities to take a specific act or nonfeasance only for public benefits, and individuals benefit from this action or nonfeasance, but solely on the ground when they happen to benefit from the result of enforcing the law as a member of the society as a whole or other non-specific majority, such benefit is the reflection effects of the law, which is named as Reflection Interest. Traditional public law theory makes a sharp distinction between rights and interests, with no relief to reflection interests. Accompanied by the social development in the twentieth century, with the coming of the welfare-state era, the responsibility of the government has constantly been discovered, and the administrative proceedings theory has broken the reflection interest theory with rights protection theory in substitution. China abandoned the outdated theory in the beginning of the establishment of administrative proceedings, and China's current principle is right-obligation practical implication (harm).Chapter II is about the changes in the qualification system of plaintiff in China's administrative proceedings. First of all, there are five major functions of the qualification system of plaintiff in administrative proceedings. The first one is to implement the judicial fairness and justice; Second, to strike a balance between the protection for just claim and abuse prevention; Third, to obtain a balance between the executive power and judicial power; Fourth, to bring about the reunification of legal effects and social effects; Fifth, practical operation function, which is easy to operate, saving litigation costs. Secondly, it is the historical development and legislative deficiencies of the qualification system of plaintiff in China's administrative litigation. The qualification criteria of plaintiff in China have gone through three phases of historical evolution. It was the standard established by law period from 1982 to 1990, when whether citizens, legal persons and other organizations were entitled to prosecution was entirely stipulated by various laws and regulations; it was legitimate rights and interests standard period from 1990 to 2000, when the provisions of Article II of the Administrative Procedure Law were regarded as the standard; It is the standard stage of interests in law and practical impact after the enactment of the Explanations in 2000. In addition, this chapter makes an analysis of the existing problems of China's Administrative Litigation Law implemented in 1990, such as the undistributed provision model of the scope of accepting cases, the narrow scope of protection for interests, moreover, the provisions on Specific Administrative Act exclude other administrative actions that can be actionable, or it is limited to prosecute in favor of the interests of others, and so on.Chapter III is about the impact that judicial interpretation and cases exert on the plaintiff theory and system in administrative proceedings. First, it begins by describing the impact which the judicial interpretation in 1991 exerts on the theory and system of the qualification of plaintiff. The second section describes the impact which the judicial interpretation in 2000 exerts on the theory and system of the qualification of plaintiff. Both of these two judicial interpretations have their irreplaceable significance of guidance in practice, but they also have their limitations. The plaintiff qualification system has always been restricted by China's political and economic development situation, and it is a reflection of the development process of democratic rule of law. There is no remedy for the Administrative Procedure Law in the judicial interpretation in 1991, which on the contrary, caused further contraction of the limited scope of accepting cases, and the explanation to the Specific Administrative Act limits the qualification of plaintiffs, at the same time, the law stipulation also limits the victim's eligibility as a plaintiff. The judicial interpretation in 2000, established the qualification system of plaintiff with Chinese characteristics, and a judging criterion with legal interest, and directly confirmed the plaintiff qualification of related persons in some of the administrative acts, in order to achieve the special protection for certain interest bodies. Section III in this chapter discusses the impact that the case guidance system exerts on the theory and system of plaintiff qualification in China. First, different from case law which provides only reference for judges, the case guidance system plays an important role to unify the judicial standards in our country, as well as to broaden the scope of accepting cases and expand the qualification of plaintiffs, and some administrative litigation cases which have a greater impact in the community have promoted the administration by law by assigning plaintiffs to eligibility, and have played a positive role in promoting the social development.Chapter IV makes recommendations to the structure of the theory and system of the qualification of plaintiff in China's administrative proceedings. First, the measurement and judging of the main elements of the qualification of plaintiff is described. It is focused on the analysis of the issues about the qualification of plaintiff that should be given by government agencies in exceptional circumstances, or the issues that the main qualification of the inheritance plaintiff should be given full protection in the transformation of plaintiff's qualification after the death or termination of the original plaintiff. Second, it explores the practical implication of interests as the core value to determine the qualification of plaintiff, and clarifies the identity of legal rights and interests, legal interests, and the practical implication in their content, proposing the scope of protection in China's administrative litigation, and stressing to regard the practical damage of rights and interests as the central criterion for judging. It also makes an analysis on the four forms that administrative actions affect the lawful rights and interests of plaintiff. Third, it is feasible to reduce the eligibility criteria of the plaintiff by expanding the scope of accepting cases, conducting administrative guidance, internal administrative acts, abstract administrative acts into the scope of judicial review, and gradually opening up the public interest litigation such as in the field of environmental protection. Fourth, it affirms the discretion of judges, and explores the current limits for judges to exercise their discretion in China from different parties such as the government agencies and the persons involved, this paper advocates the importance to fully respect this right, to make up for the inadequacy of legal provisions with discretion, and to deal flexibly with the issues on the qualification of plaintiff.The third part is the conclusion which makes a summary of the entire text. The writer hopes that public power can advance in the orbit ruled by law by clarifying the eligibility criteria of plaintiff and expanding the scope of the qualification of plaintiffs, so that to build a socialist country ruled by law.
Keywords/Search Tags:Administrative Litigation, Qualifications of Plaintiff, Interest, Practical Implication
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