Problems And Solutions Of Administrative And Civil Litigation Overlapping Cases In Trial

Along with our country market economy's development and the administrative and the civil legal norm's unceasing consummation, our country's administrative and civil disputes increase unceasingly. On the background of the political power expanding unceasingly and civil action being taken frequently, the public law and the civil law penetrate into each other tempestuously. In our country's judicial practice, the civil dispute and the administrative dispute which should be solved synchronously emergence and this kind of case had certain relatedness in the legal fact, and the verdicts of the case are the result or the premise of each other, so we called this kind of case——the administrative litigation and the civil litigation overlapping case. The administrative litigation and the civil litigation overlapping case presented the stern challenge for our country's administrative judicature and the civil judicature, and in our country's judicial practice the settlements of this kind of cases are barely satisfactory. This kind of situation has harmed judicature's fairness, the authority and the efficiency, and it also becomes the excuse that the people denounce the judicial activities.From the practice of the settlement about the administrative litigation and the civil litigation overlapping case in our country, referring to our country's different viewpoints about the process of this kind of case, this article plans to propose the corresponding solutions to the problems in the process of the administrative litigation and the civil litigation overlapping case's settlement.First, we define the administrative litigation and the civil litigation overlapping case as the case that the administrative disputes and the civil disputes need to be solved at the same time, and two kinds of disputes have certain relatedness in legal fact, and the verdicts of the cases are the result or the premise of each other. It is helpful that we define the administrative litigation and the civil litigation overlapping case, because we can discuss the administrative litigation and the civil litigation overlapping case's solution mechanism easily, it is also helpful to distinguish the administrative litigation and the civil litigation overlapping case from the civil case and the administrative compensation case in the judicial practice. Based on the executive power expansion and the public law and civil law's classification, this article has proven the deep level reason why the administrative litigation and the civil litigation overlapping case forms. It has also provided the foundation how to perfect the solving mechanism for the administrative litigation and the civil litigation overlapping case, and the brand-new thought to find the way how to perfect regulation concretely. Moreover this article has also used the typological analysis tool, taking the concrete administrative action's types as the foundation, carrying on the typological analysis to the administrative litigation and the civil litigation overlapping case, summarizing the different types of the administrative litigation and the civil litigation overlapping case's characteristic, and understood profoundly the administrative litigation and the civil litigation overlapping case's connotation. This would provide the rationalization basis for the administrative litigation and the civil litigation overlapping case's solution.Next, on the foundation of the careful inspection to our country's solution mechanism of the administrative litigation and the civil litigation overlapping case, this article has indicated the subject matter of the current trial practice. First, the boundary of the administrative litigation and the civil litigation overlapping case, the civil litigation case and the administrative compensation case is not clear. The civil litigation case and the administrative compensation case are often taken for the administrative litigation and the civil litigation overlapping case and tried mistakenly, and it makes the trial of the administrative litigation and civil litigation overlapping case more chaotic. Second, the identical case has been tried separately and it causes the identical case to be recognized separately. It not only increases the difficulty to recognize the legal fact, but also makes the litigants obtain the effective protection difficultly. Third, the administrative trial organization and the civil trial organization shirk mutually, so that litigant's legitimate rights and interests could not to be protected promptly and effectively, and it also influences judicature's fairness. Fourth, there is the phenomenon that the identical administrative litigation and the civil litigation overlapping cases are tried redundantly in the practice, and the administrative trial organization and the civil trial organization recognized and examined the evidence and the legal fact that the opposite party carries on repeatedly. It not only has wasted the precious judicial resources, but also made the litigant sue again and again. Fifth, the case trial time is too long, or even the case is protracted without clear results. This circumstance causes the parties to be under much burden in the litigation, and simultaneously influences the stability of social relation. Sixth, there is contradiction between the administrative decision and the civil decision. In the process of the legal fact recognizing and the evidence examining in the administrative decision or civil decision, it is lack of the communication mechanism between two different trial procedures, causing frequent conflicts between the administrative decision and the civil decision, and effecting the fairness and the authority of the judicature.Once more, there are quite mature trial experiences about the administrative litigation and the civil litigation overlapping case's solution in many countries. This article inspects and combs representative country's administrative litigation and the civil litigation overlapping case's solution mechanism such as UK, US, France and Germany, and it would provide the essential thought for perfecting our country's trial system of administrative litigation and the civil litigation overlapping case. The UK-US country's one- way-trial-system no doubt can guarantee realization of the fairness, and it can also guarantee that the massive administrative cases can be solved through the administrative procedure in the interior using"exhaustion of the administrative relief principle", but administrative case's solution involves various questions such as the technique, the specialization and the social efficiency and so on. All administrative litigation and the civil litigation overlapping cases are solved through the sole procedure, it not only violates the economical judicature principle, consumes massive judicature resources, but also goes against case's settlement quickly, increases the parties litigation burden. France and Germany adopt the dual trial system, it not only has guaranteed that judge has the specialized skill, but also adopts the multiple standards to process the administrative litigation and the civil litigation overlapping case separately through the discrimination of the public law and the civil law. It provide important model for our country to perfect the solution mechanism of administrative litigation and the civil litigation overlapping case, but we must know that France and Germany face complex societies, and the discrimination standard of the public law and civil law still puzzle them to solve the administrative litigation and the civil litigation overlapping case, so that it causes low judicature efficiency. Japan attempts to synthesize two system's superiority, but the design of the solution system is still insufficient.Finally, in view of our country's problem which exists in the solution of the administrative litigation and the civil litigation overlapping case in trial practice and on the foundation that we summarize the representative country's solution mechanism of the administrative litigation and the civil litigation overlapping case, this article proposes concrete solution. First, we must be clear about the administrative litigation and the civil litigation overlapping case's scope through the corresponding legal norm, eliminating that who treats wrongly the non-administrative litigation and the civil litigation overlapping cases as the administrative litigation and the civil litigation overlapping cases. Second, it should establish three cardinal principles——the fair of judicature, the efficiency of judicature and intercoordination in the judicature in the solution process of the administrative litigation and the civil litigation overlapping cases, which provide important direction for concrete case's processing. Third, the typological analysis is utilized to classify the administrative litigation and the civil litigation overlapping cases, such as the main administrative litigation and the civil litigation overlapping cases, the main civil litigation and administrative litigation overlapping cases and the equal administrative litigation and the civil litigation overlapping cases. Fourth, on the foundation of the typological analysis on the administrative litigation and the civil litigation overlapping cases, we proposes three different concrete ways on the solution of the cases,which avoided the rigescent processing mode of the"across-the-board ruling". Fifth, under the premise that three kinds of different administrative litigation and civil litigation overlapping cases solved according to different ways, it should further perfect the related laws and regulations, which make the administrative litigation and the civil litigation overlapping cases being solved harmoniously.