On The System Of Temporary Rights Protection In Administrative Litigation

Administrative Litigation Law of the People’s Republic of China was made in1989. People consider the Administrative Litigation Law as a "law for people to lodge a complaint against officials." It has a very important effect on protecting the right of the administrative counterpart for about30years. But with the developing of socialist democracy, this Administrative Litigation Law begins to behind the age. A lot of administrative problems can’t be solved through judicatory way by this law. As we know, Provisional legal protection system is an important part of Administrative Litigation Law, but it is not perfect in our country and can’t play a role in protecting the right provisionally in the proceedings very well. Because the normal proceeding will last a long time, the administrative action won’t be stopped. It will lead to a situation that the administrative counterpart has won a lawsuit but the object of action has been damaged and the object of action can’t be restored. The won judgment will lose the real value. In order to avoid this situation, many countries build the provisional legal protection system. The provisional legal protection system is different from the normal administrative judicial proceedings. The provisional legal protection system occupies an important place in Administrative Procedural Law of German, Japan and Taiwan. But in china mainland, the provisional legal protection system is missing, or at least grossly underemphasized. So we need to talk about this system seriously and find the important value in it.This article talks about the concept of the provisional legal protection system firstly. In first part this article analyzes the feature of this system. This paper thinks that the provisional legal protection system has the feature of the purpose of protecting rights, provisionally, proceeding and efficiency. Then this paper summarizes the theoretical basis of the provisional legal protection system. This system must be an important part of Administrative Procedural Law. This system protects the right of those administrative counterparts effectively. In the second part, this paper compares some countries’similar system such as German, Japan and Taiwan. This paper talks about the content of this system in foreign country and analyze the theory basic of provisional legal protection system in those countries’ constitutions and laws from entity condition to procedural condition. Through these comparative studies, some useful theories and details have been found. They can be used for improving the provisional legal protection system of our country. In the third part, this paper analyzes the provisional legal protection system of our country. This article will analyze the system’s legislation actuality and the system’s practical status. This article sums up those problems of the provisional legal protection system at present. At last, this article puts forward some possible solutions. This paper thinks that we need to talk about the details of the system. Consummate the Property preservation system and enlarge the Application of the advanced execution is necessary for preservation system. In the end, our aim is to own a perfect and developing provisional legal protection system.