The Reconstruction Of China's Unstopping Executive System On Administration Lawsuit

The principle of unstopping executive on administration lawsuit is a basic principle of the law of administration lawsuit, also an important system of executive relief. In view of some factors, such as the public benefit's priority and executive efficiency, etc. the legislator in our country established unstopping executive system principle. But this principle hasn't given the function in practice, even in variance with practice. And the conflict lies among the laws and in the principle and the administration executive system in force. With the deepening of administration theoretical research, the strengthening of the ideology on security of human rights and the protection of the rights on administration of justice, the weakness of lawsuit unstopping executive principle begin to be exposed. At this time, it also causes the argument of the scholars in our country on principle and exception.In the first part, the author gives the elaboration of the definition of lawsuit unstopping executive principle and the theoretical basis. Then the author analyzes the present legislation situation in China, and from the combination of theory and practice, analyzes the problem lied in the lawsuit unstopping executive principle. To comply with the development of administration law, we must reform the lawsuit unstopping executive principle. Combined with the contrast and analysis of the lawsuit unstopping executive principle in Japan and Taiwan in China, the prescription of stopping executive principle in German, we can see that the country that uses stopping executive principle puts emphasis on exception regulation of unstopping executive principle while the country who takes use of unstopping executive principle also sets the exception situations of stopping execution. Thus no matter which is principle, which is exception, it seems that exceptional rules begin to show its importance and the two principles that look like contrast with each other are slowly mixing. From different point of view of legislation, unstopping executive principle lays emphasis on the protection on the effect of administration action, while stopping executive principle centered on the security of human rights. Though which is principle, which is exception is not important, a principle should be set for the practice of administration of justice. In view of the stopping executive principle in foreign countries and combined with the situation in our country, the author thinks that we should set stopping executive principle. In the fourth part, the thesis is mainly about the construction of stopping executive principle and the author presents legislation design and a detailed discuss of the design of stopping executive process. So this expands the range of applicants of stopping executive and confirms the process requirements of the contents of stopping executive application, quote responsibility, the criterion of the examination in court and the effect through adjudging.