| In Administrative litigation there is a scope for accepting cases, which is what distinguishes administrative litigation from civil and criminal litigation. This article would first explain on the concept and the merit of the scope of accepting cases in administrative litigation. This would be followed by an analysis of the fundamental reason why a scope for accepting cases in administrative litigation is called for, which is the division of the administrative and the judicial power. Then it would try to demonstrate the fact that in China, the scope for accepting cases in administrative litigation is statutory, adaptive, and developing. Discussions will then be made as to the legislative model and the defining standards for the scope of accepting cases in administrative litigation as shown in the 1990's "Administrative Procedural Law" and the 2000's " The Judicial Interpretations on Administrative Procedural Law". It is the view of this article that the Law provides for the scope of accepting cases in administrative litigation with a legislative model that is mixed in form and enumeration in nature. It also establishes a scope according to which only specific administrative acts and the personal/property rights under the prejudice of such acts should be examined. It is the opinion of this article that "The Judicial Interpretations on Administrative Procedural Law " establishes a legislative model that includes both affirmative generalization and negative enumeration, which is a mixed legislative model in its true sense. Standards for judicial examination are changed from "personal rights and property rights" to "legal rights", which is a significant step forward. However, due to the underlying defects of the Administrative Litigation Law in terms of concepts, models and standards, such judicial interpretation is still far from being a "breakthrough", especially when judicial examination is still limited to administrative acts. This is followed by an analysis of the similarity on the scope of judicial examination in administrative litigation between two legal systems. It is concluded that the scope for judicial examination in foreign country adopts the principle of general jurisdiction, that the scope of judicial examination is based on the administrative act, and that it adopts combined and mixed legislative model with both affirmative generalization and negative enumeration. Based on a comparative analysis between the scope of judicial examination of the two legal systems, the author offers some profound thinking on the scope of accepting cases in administrative litigation in our country. The conclusion of such thinking is that the principle of "specific competent authority" adopted in our legal system when defining the scope of accepting cases in administrative litigation is a sign of the messy legislative model which results in a narrow scope of accepting cases. Finally, the author concludes that, with China's entrance into WTO, practices under the Administrative Litigation Law (such as: judicial examination is limited to administrative act; internal administrative act and final administrative judgment are excluded from the scope of accepting cases) are in conflict with WTO's judicial general examination principles and judicial final governing principles, and contradict with the international human rights covenants to which China is a signatory. In view of these, the reforms Administrative Litigation Law are urgently needed. In order to fully protect the lawful rights of citizens, legal persons or other organizations and to fully monitor the administrative authority's lawful exercise of its power and its commitment to comply with human rights covenants, and at the great opportunity of WTO, we shall borrow from the practices in developed countries regarding the scope of accepting cases in administrative litigation to establish a complete judicial examination system. The author offers some ideas on redefining of the scope of accepting cases: to annul the "sp... |
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