China's Administrative Litigation

The administrative litigation mode is a comparatively new subject not gaining enough study in the field of jurisprudence of china now. This article is intended to carry out an elementary but systematic analysis of it, only to do some good to the construction of China's administrative proceedings system.Except foe forewords, this article is divided into 5 chapters. Chapter one is concerned with the outline of the administrative litigation mode, which mainly involves its classification, concept, function and meaning, etc. in this chapter, the mode of litigation is rigidly distinguished from the sort of litigation when the meaning of administrative litigation mode is probe into. The sort of litigation is classified in allusion to the whole litigation. The author of this article defines the mode of administrative law in a wide sense: it refers to the mode, with the same constructive elements, which apply to the same trial rules and types, and makes appropriate sentences. It also can be called the category of administrative litigation.The meaning of the mode of administrative litigation embodied theoretically and practically. In theory, the mode of administrative litigation is classified and concluded to social disputes according to a certain standard. The basis of social concrete evidence has been founded by the make-up of litigation system and the design of proceeding remedy. In practice, the outstanding part of the mode of administrative litigation lies in the following points: first, provide appropriate remedy mode and method for litigants; second, help the effective running of administration; third, help the optimizing of the structure and procedure of administrative litigation; forth, help the formation of our country's legal system.Except for the basic functions, the functions of the administrative litigation are showing as follows: first, shows in the protecting of citizen's rights; second, shows in the systematically administrative litigation; forth, shows in the deepening theoretical research on administrative litigation.The second chapter concerns the comparison of foreign country's administrative litigation modes. In France, According to the traditional classification, it is classified into complete jurisdiction lawsuit; repeal lawsuit, lawsuit of interpretation and review of administrative decisions' significance and validity, sanction lawsuit. According to the subject matter, it is classified into subjective lawsuit and objective lawsuit. According to the Federal Administrative Court of Germany, it is clearly classified into regulates lawsuit, validation lawsuit, demanding-performance-of-liabilities lawsuit, other shaping suit, average performance lawsuit, continuative validation lawsuit, and other new kinds of lawsuits. In Japan, the mode of administrative litigation is classified into counter-appeal lawsuit, parties lawsuit, democracy lawsuit and administrative organ lawsuit in its Act of Administrative Proceedings. Then, the author introduced the judicial review; the mode belongs to the civil law system. The forms of judicial review of England can be classified into the average relief lawsuit and the exceptional relief lawsuit, which are very different in the form of writ. Judicial review of USA is mainly classified into statutory review and non-statutory review. Non-statutory review adopts the writ system of England. Furthermore, some special judicial review forms were produced in USA.The third chapter concerns the remarks on our country's administrative litigation mode. First, in term of the expert's ideas, this article studies classified our country's administrative litigation mode. The author pointed out that because the administrative proceedings mode is not regulated in China's Administrative Proceedings Law and the meaning of the administrative proceedings mode concluded by the academic circle is too narrow, a lot of problems emerge in administrative and judicial practice. Then, this article analyzed the elements which can influence our country's administrative litigation mode, to determine the standard defined by our country. As to the standard of administrative proceedings, the dissertation says that there are a lot of factors which influences the administrative proceedings mode, such as political system, economic base, cultural tradition, aim of academic proceedings, parties' solicitation, sort of administrative act, the kind of the right the administrative counterpart owns in term of administrative law, etc;Chapter four concerns the construction of our country's administrative litigation mode. It mainly discussed the related content of repeal lawsuit, validation lawsuit, demanding-performance-of-liabilities lawsuit , administrative validation lawsuit, and analyzing some related problems.Firstly, discuss administrative repeal lawsuit. It mainly analyzes its meaning, its scope of being applied, special litigation elements, acceptance and hearing, and decisions. As to the application scope, the dissertation points that it is too narrow after analyzing the status quo and suggest that the special-power-relation of the internal administrative act and the quasi-administrative act should be ascribed into the scope of repeal lawsuit. The special elements of repeal lawsuit are: the existence of the specific administrative act, the plaintiff's claim of the specific administrative act's violating the law and impairing his legal right or interest, the plaintiff's litigation within a certain legal period. During the course of repeal lawsuit, the defendant assumes the burden of proof, and in principle the court is forbidden to investigate evidence actively. In addition, the main forms of decisions the court can adopt are repeal decision, rectification decision, solicitation-rejecting decision and condition decision.Secondly, discuss administrative affirmation lawsuit. It mainly analyzes its meaning, its scope of being applied, special litigation elements, acceptance and hearing and decisions. The lawsuit of this kind is aimed to judge the validity of a certain specific administrative act being and the existence of a certain administrative legal relation. The application scope falls on the invalidation or irregularity of a certain specific administrative act and the existence of a certain administrative legal relation. The special litigation elements of invalidation-or- irregularity-affirmation lawsuit are: the subject matter of being affirmed is the invalidation or irregularity of a certain specific administrative act; antecedent procedures must be carried through; the plaintiff should claim that his legal right and interest has been impaired because of the defendant's violation. The special litigation elements of existence-of-administrative-legal-relationship lawsuit are: the subject matter of being affirmed is the existence of a certain administrative legal relation; the plaintiff s legal right and interest has been impaired because of the defendant' s violation; the plaintiff can' t institute other lawsuits. The decision the court should make is affirmation decision.Thirdly, discuss demanding-performance-of-liabilities lawsuit. It mainly analyzes its meaning, its scope of being applied, special litigation elements, trial and sentences. The subject matter of the lawsuit of this kind is non-performance of administrative act, including non-performance of burdening administrative act and granting administrative act. Demanding-performance-of-liabilities lawsuit can be classified into that of incomplete non-performance and that of complete non-performance.The special lawsuit elements of the lawsuit of this kind is non-performance of administrative act include that: the lawsuit subject matter that the plaintiff litigates is a certain specific administrative act; the plaintiff has applied for the administrative organ; the plaintiff should claim that his legal right and interest has been impaired because of the administrative refusal to perform its duty; the litigation should be brought in a certain legal period. Comparing these two kinds' lawsuit, there are different assumption of burden of proof: as to the former, the defendant has assumed the burden of proof, while, as to the latter, the plaintiff is to assume the burden of proof in a certain circumstance; the court can substantially review the incomplete non-performance and make a decision to require the defendant to perform its specific duty, while the court can review the incomplete non-performance only in a formalistic way and make the decision to require the defendant to perform his duty in a certain period.Fourthly, discuss administrative granting lawsuit. It mainly analyzes its meaning, its scope of being applied and sort, special litigation elements, acceptance and hearing and decisions. The main difference between administrative granting lawsuit and demanding-performance-of-liabilities lawsuit lies in their scope of being applied: the latter is applied to the specific administrative act the administrative organ makes, while the former is applied to what is excluded from the demanding-performance-of-liabilities lawsuit. So, in some sense, the former is supplementary to the latter. The administrative granting lawsuit is mainly applied to wealth granting, administrative contract, factual act and so on. Accordingly, it is classified into wealth granting lawsuit, non-wealth granting lawsuit, and administrative contract granting lawsuit and precautionary non-performance lawsuit and so on. The special litigation elements of lawsuit of this kind are: the lawsuit subject matter that the plaintiff litigates should be wealth granting or non-wealth granting which down' t belong to specific administrative act; the plaintiff should claim that his legal right and interest has been impaired because of the defendant' s violation to perform its duty; the solicitation can' t be put forward along in repeal lawsuit; antecedent procedures must be carried through; the litigation should be brought in a certain legal period. During the course of the lawsuit of this kind, the defendant's burden of proof should not be always emphasized too much. However, the assumption of burden of proof should be assigned to the plaintiff and the defendant according to the factual conditions. When the defendant can't fulfill his burden of proof, the court should try all out to help to investigate proof. There is a basic principle in Administrative Proceedings Law of China that mediation should be forbidden. But this dissertation claims that mediation can be applied to a certain kind of administrative act and a certain sort of administrative proceedings. The administrative organ should have substantial determination power in a certain situation, if the applications of mediation don't impair the interest of the government, the society and other citizens. Certainly mediation should be forbidden in virtue of solving the case and controversies quickly. The court can make a granting-offering decision or a solicitation-rejecting decision.Fifthly, discuss the review of abstract administrative act. It mainly analyzed the concept of abstract administrative act and the necessarities to be adopted in administration litigation. Abstract action is an executive, specific and repeated regulative act to a majority of people. From the administrative proceedings judicial practice and the current situation of development, it is necessary to take abstract administrative act into litigation. The scope of the proceedings of abstract administrative litigation is the abstract administrative act below administrative regulations. The precondition of prosecution is the legal rights and interests which have been influenced .In terms of litigation modes, administrative affirmation lawsuit can be taken and also can be dismissed or affirmed by the court.Sixthly, discuss on the related issues of administrative litigation modes. The author mainly analyzed the establishment of public interest litigation and administrative incidental civil. Firstly, the establishment and feasibility of public interest litigation, and then make clear those procurator organs mentioned as a plaintiff prosecution, and sentenced by courts. Secondly, the author analyzes the administrative incidental civil issues, and point out that the parties to the proceedings should not be set as our country's administrative litigation. The administrative incidental civil should be attached to civil administration as a solution and additional part to the civil and administrative disputes. The administrative incidental civil is a lawsuit for those who don't accept the following administrative acts: administrative decisions, administrative affirmation and administrative permission, etc. the author also analyzed the component elements to the proceeding requirements, procedures, the responsibility and the way to sentence. The last part concerns the administrative litigation modes and the revision of China's Administrative Procedure Law. In the end, the author put forward some legislative suggestions to perfect our country's administrative litigation mode system.