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The Defendant In Administrative Litigation Of China's Public Colleges And Universities Qualify

Posted on:2005-11-26Degree:MasterType:Thesis
Country:ChinaCandidate:Y LinFull Text:PDF
GTID:2206360152966347Subject:Law
Abstract/Summary:PDF Full Text Request
The trial of TianYong case and LiuYanWen case has initiated the drastic debates about the defendant qualification of higher institutes in theory and judicial domain. But the current issues mainly deal with the legislations and judicial practice, lack of the necessary theory to support it. The author thought it is necessary to study the defendant qualification of higher institutes from three aspects comprehensively, that is, theory, legislation and judiciary. From the theory of public legal person and special power relationship, this paper is directed at the flaws of current legislations, combining with Chinese judicial practice, and examining the relevant theories and practices of Continental Legal System and Chinese Taiwan region. The aim of this paper is try to find a comparable clear answer to this issue.The nature and legal status of higher institutes is defined as the enterprise by Chinese current laws. No specified regulated to the defendant qualification of administrative litigation. Also, no definite provision in two judicial interpretations to <> has been regulated by the Supreme Court of China. But the provision of authority organization in Article 25 of <> has become the legal basis of hearing the administrative litigation case which the higher institutes as the defendant. The relationship between the actionable nature of the supervision action of higher institutes and its defendant qualification of administrative litigation is very close. But except <>, there are no any provisions in current laws. This legislation situation has an adverse on judicial practice and theory research.Not united judicial practice first results in the imperfect of legislation. Before 1999, the courts often reject to accept and hear the administrative litigation related to the case which the higher institutes as the defendants. The TianYong case in 1998 has made a beginning of establishment of the administrative litigation defendant qualification of higher institutions applying the authority organization prescribed. But some methods of not ratifying the actionable nature of defendant qualification and supervision acts of higher institutes still exist. As for the defendant qualification of higher institutes, minority scholars reject it on the ground that the enterprise legal persons are not governmental agencies. Majority scholars confirm it by reason of some organizations which have the educational administrative official powers has been authorized by laws and regulations. So, applying the authority organizations in judicial practice has been confirmed by majority scholars. But some person argued that this applying is only expedient measure, and also someone thought the authority organizations should be replaced by the governmental organizations. To the actionable nature of higher institutes, some scholars reject it because that no definite provisions in <> Majority scholars agree its actionable nature according the scope of accepting the case in <> and Article 42 of <>.Study on the relevant theory and practice of Continental Legal System and Chinese Taiwan region can give reference to the amendment of Chinese current laws. The public legal person theory on behalf of France established the legal status ofhigher institutes' administrative subject. The higher institutes in France are science culture and professional public legal person. The higher institutes in Germany are public associations and state agencies. In Japan, they are state-owned bodies, not legal person status, same as in Chinese Taiwan region. The higher institutes in Japan and Chinese Taiwan region are tending to be made legal persons. The establishment and amendment of the special power relation theory on behalf of Germany made the actionable nature of higher institute administrative acts breakthrough. With the division of basic relationship and management relationship, the higher institute supervi...
Keywords/Search Tags:higher institute, defendant qualification of administrative litigation, supervision action of higher institute, actionable nature
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