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The Research On The Preliminary Administrative Issues In Civil Proceddings

Posted on:2011-03-30Degree:MasterType:Thesis
Country:ChinaCandidate:S YiFull Text:PDF
GTID:2166360305481385Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
The expansion of executive power in modern society, results in many executive powers affecting the economic and civil issues, thus triggering more and more disputes. So far, a common consensus dealing issues not only infrige the provision of Administrative Law but also infrige the provision of Civil Law has not been reached yet, while in practice,judicial interpretation and court approval of individual cases are the only method handling thes cases,which aredifficult to meet the real needs. So, our urgent task is to eatablish a more comprehensive theory on the area.Preliminary issues discussed in this article relating to civil process, not belonging to the main subject of the proceedings, but the subject matter of the administrative problems which is vital in identifying and resolving the object of procedure. This article discusses the trial division of jurisdiction on the basis of preliminary issues by analyzing the civil proceedings consist of the executive behavior in various forms, thus according to the specific administrative affect in the civil rights and obligations of the main contents as a civil action preliminary issue and the administration pre-issue itself is divided into pro forma preliminary administrative issues and substantial preliminary administrative issues. The pro forma preliminary administrative issues involved in the specific administrative act and has the same position as general evidence which should be tried by the civil tribunals; while substantial preliminary administrative issues as well as the civil disputes,should be treated by Administrative incidental civil action chosen by the parties of the civil dispute. the applicable administrative hearing with civil litigation system. In such a way,the author is expecting to find a new way of thinking.This article about a total of 30000 words divided into five parts:The first part of this article based on the concept of preliminary administrative issues in the civil process,clarifise the characteristics of a preliminary question to show the problem studied and resolved in this paper, and summarize preliminary issues arising from several types of specific administrative behaviors by generalizing the scope of a preliminary question.The second part of this article is mainly about the theory of the trial division of jurisdiction by analyzing the cause of the civil causes consist of preliminary administrative issues, pointing out that in such cases of civil and administrative litigation, the Civil Jurisdiction and Administrative judicial separation is the main cause of cross-emergence,due to modern administrative authority's effects in civilian field of private law embodied in the infiltration of increasing evidently.The fundamental solution to such civil and administrative litigation is to re-examine the trial division of jurisdiction.The third part of this article points out that China's current conflict of jurisdicton is the same as the civil court's jurisdiction to preliminary administrative issues by investigating the theory of jurisdiction in and outside the country. While the evaluation of the current system in forigne countries and regions indicates that the most effective way in dealing with this problem is to change current system under the awareness of effectiveness of the proceedings.The fourth part of this article shows the division of pro forma preliminary administrative issues and substantial preliminary administrative issues by analyzing different types of preliminary administrative issues.And combines the civil procedure and Administrative incidental civil action to solve these cases.In the last part of this article,the author limites the applications of the administrative incidental civil action to the substantial preliminary administrative issues under parties' selection. While pro forma preliminary administrative issues are solved in civil trail according to the principle of Free Evaluation of Evidence.
Keywords/Search Tags:Preliminary administrative issue in civil process, The conflict of jurisdiction, Administrative incidental civil action
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