| The implement of Law of Administrative Proceedings brings people too many expectations, but in the meantime it is somehow incapable in its application, especially the high rate of withdrawal of accusation, which causes the imbalance of the scales of people's belief in law. The reason why this situation causes people's concerns is because among all the withdrawn administrative lawsuits there are few normal withdrawals but numerous abnormal withdrawals. So, where is the sticking point? This thesis, with this puzzle, focuses the vision to jurisdiction system, analyzes present conditions of administration litigation in our country, and re-examines the problems of administration litigation from the angle of view of Chinese traditional culture and indigenous human feelings society. Based on the idea of hierarchy, the thesis puts forwards a principle of "high level no examination", meanwhile it summaries the gain and loss of western administration courts. Finally, it puts forward establishment of the differentiated jurisdiction system of trinity of "a lift and two supplements", namely, enhancement of the rank of jurisdiction and being complemented by grass-roots courts and trial in other place.In spite of the introduction and conclusion, the thesis, being about 40000 words, is divided into four parts. The main contents are as follows:Firstly, it expounds withdrawal of administration litigation cases which brings the riddle. Under the cloak of withdrawal of a case, massive abnormal withdrawal of cases has long existed. But when people unveil the cloak, what people see is that a plaintiff is meticulous and a defendant is arrogant. The court and judge in the crevice, burdened with the dual pressure of morals and spirit, become increasingly weightless. This part of the thesis analyzes and expounds the reason of the high rate of withdrawal, and then exposes its primary cause is that the court is bound to the accused administrations by their manpower, finance and materials.Secondly, it describes and analyzes current situations and problems of administration litigation jurisdiction in our country. This part begins with the present conditions to investigate its characteristic, and analyzes thoroughly various existing problems: 1 .the jurisdiction level is so low that the court will assume too much pressure when facing the defendant; 2.the principle of "upside-down onus probandi" in the regional jurisdiction turns regional interference from possibility into reality; 3.the principle of balanced burden for court isn't implemented, resulting in the unbalance of courts' workload; 4.the system of administration litigation jurisdiction can't simply imitate civil procedure; 5.transference of jurisdiction to a lower level makes regional protectionism seem to be "legal"; 6.there are drawbacks that need to solve immediately in the constitution of court system; 7.the judicature depends on administrative power, and administrative power interferes in judicature; 8.the society with indigenous human feelings brings out a great deal of "human relations" cases. On the basis of the above, it also analyzes the four sources to produce an above-mentioned problems, that is, jurisdiction level, allocation of power, economic foundation and the cultural tradition, and then roundly illustrates present conditions and emerging problems in our country.Thirdly, it investigates the establishment of the principle of "high level no examination". This part, to begin with, analyzes the caste system from the view of the development of social hierarchy. Although the caste system mostly involves society and politics, the thesis isn't constrained by these factors and explores the problem in a broader view. Through the exploration of the indiscrimination grade including subjection and progressive relation, unary progressive sub-grade, the grade to maintain social order and slavish grade, it concludes: To begin with, no matter the grade is indiscriminate or differential, it is a kind of sequence with regulation and equilibration; moreover, grade doesn't mean good or evil, what really counts is the control power beneath the grade; finally, the difference of grade of the power sequence is of justice. On the basis of the connotation of caste system, it expounds that the traditional idea that deems the caste system as the feudal and bad factor needs to be reconsidered, in the meantime it points out the order and justice supported by the grade is of great importance. Through the analysis of the four factors, namely, grade justice, exaltation of jurisdiction level, cultural idea and the situation of our country, it puts forward establishing the principle of "high level no examination". Fourthly, it brings forward rational suggestions to perfect administration litigation jurisdiction. For a long time, academia in our country have been calling for establishing an administration court to solve the current difficult problems about administration litigations. This part of the thesis investigates the background and effect of administration court of some western countries, and makes a thorough comparison with China from the view of system itself, economic costs, system problem and social structure and cultural idea. As far as the concrete design of our country's system, it appears too early to introduce the administration court system. It is somewhat irresponsible to carry out a possible expectation with high cost, because problems, to some extent, can be solved by modification and development of our country's current jurisdiction system. And then this thesis sets out from Chinese traditional idea and social structure to inquiry into "relative right" in our country which differs from "absolute right" in western countries and stable structure based on blood relationship, and it advocates to advance gradually to develop the administration litigation system with the exaltation of jurisdiction level. To begin with, under the direction of "high level no examination" principle it establishes the system of the first-instance tried by the Intermediate People's Court to raise administration jurisdiction level; secondly, the high people's court dominates grave and complicated first-instance administrative cases within its magistracy; thirdly, the Supreme People's Court rules over national grave and complicated first-instance administration cases; Finally, the provision to transfer jurisdiction to a lower level should be canceled. In the meantime, it provides parties with an option of jurisdiction to develop the complement function of basic level court; learning from the experience for different nationalities in the American civil procedure, to some special cases it adopts jurisdiction in other places. At last it establishes the administration litigation jurisdiction system of "a lift and two supplements"... |
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