On Administrative Incidental Civil Action

Civil litigation attached to administrative litigation (abbreviated to CLAAL) is an emerging procedure that comes from the practice and has the value to the legislation. But for a long time, scholars have only paid a little attention to some typical cases. So this dissertation paper conducts a principle research into concept, value, purpose, origin and improvement of CLAAL.This dissertation paper is divided into four parts, consisting of 36,000 characters.PartⅠis about the introduction of CLAAL. Firstly this part demonstrates the development and the present situation of CLAAL by three typical cases. Secondly it proves CLAAL should remove the administrative compensation litigation, and admit the administrative decision litigation. Thirdly it deduces the junction of administrative litigation and civil litigation is civil dispute, and the essence of CLAAL is civil litigation. Fourthly it discusses the "attached" in CLAAL, and proves that the "attached" means the order of procedure choosing only. Finally it explains the characteristics of CLAAL.PartⅡis about the value of CLAAL. Firstly it proves the denial of CLAAL is one-sided and wrong from three aspects. Secondly it analyses the purpose of CLAAL is the protection of civil rights and interests of civil litigant. Finally it explains the three values of legal principle of CLAAL: litigation's benefit, principle of judicial final settlement and fusion and coordination of procedures.PartⅢis about comparative law of CLAAL. It selects France, Britain and Japan as objects under research. Firstly it introduces the system of jurisdictional right of affiliated question in France. By demonstrating dual trial structures and dual purposes of French administrative law, it proves China should not accept the system of jurisdictional right of affiliated question. Secondly it introduces the plural ways of fights remedy in Britain, including judicial review, action in common law and statutory appeal. Then it proves China should model herself on Britain in many aspects. Finally it introduces the litigant litigation in Japan. By criticizing the viewpoint that China should introduce litigant litigation, it proves that the guiding ideology of litigant litigation violates the guiding ideology of Chinese administrative litigation, so China should not imitate it. PartⅣis about improvement of CLAAL. Firstly it analyses the system origin and thought origin of overlapping situation of administrative litigation and civil litigation. Secondly it reveals three major problems about CLAAL: poorness of legislation, weakness of procedural roles, (including: litigation jurisdiction, limitation of litigation, burden of proof, outcome of adjudication and execution) and limitation of ideas. Finally it proposes three suggestions about how to improve CLAAL: strengthening the legislation, consummating procedural rules, enhancing ideas of legislators, judicature, the populace and scholars.