On The Administrative Lawsuit Defendant Qualification Standard

Administrative proceedings, this is one of the core problems in theadministrative procedure, and we cannot lack of it in the contribution of a rule-by-lawcountry. Since the ancient times our Chinese working people influenced by Doctrineof the Mean, the pursuit of no litigation has its far-reaching impact from then on.Since1990, China’s Administrative Procedure Law was promulgated to implementmore than20years, with the improvement of the new China rule of law and thevarious administrative trial work in the people’s courts actively carried out, coupledwith the continuous deepening of the theoretical circle，our people gradually haveturned the old ideas that they have attention to their rights and interests protectioninstead of unwilling to prosecute and no dare to prosecute. Once their rights havebeen violated, they would be initiative to seek various relief including administrativeproceedings. In order to solve the problem of the defendant’s eligibility in theadministrative litigation in China, the Administrative Body Theory was brought intoChina. The standard of the defendant in China’s administrative proceedings is that“Who is the subject of administration, who should be the defendant” for a long time.This standard produces a theoretical basis for the right defendant in administrativeproceedings. But practice is the sole criterion for testing truth. After the repeatedjudicial practice in China’s courts, the defect of this standard is appearing day by day.First of all, the concept of administrative body is divided by the architecture of theadministrative bodies, subordinate relationship to each other and distribution andredistribution of the administrative authority, the Administrative Body Theory is asubject in the substantive law to solve the problem of the power configuration of thevarious organizations. The Administrative Body Theory is not a subject in theprocedural law to solve the problem that who is the right defendant in theadministrative proceedings. Secondly, administrative bodies themselves are quite huge and complex. It needs professional Executive Organization Act knowledge touse the standard “Who is the subject of administration, who should be the defendant”,so that we common people usually cannot use it with ease. So it is often to see thatthe rejection of a complaint since that the administrative counterpart do not knowwho is the right defendant. Thirdly, in practice even the plaintiff’s claim is accepted, itmay have the risk of lacking relief since that the organization which participate in theproceedings is different from the one which make the administrative decision.Administrative proceedings is the last line of defense to the legal supervision of theexercise of executive power. Once there are problems in the administrative litigationsystem, the purpose of the administrative proceedings would be difficult to achieve,and the strongest supervision of the executive power would also be missing.Therefore, to reflect on the standard of confirming defendant in the administrativelitigation, and it is very necessary to carry out some reformation which is moreconducive to the realization of the purpose of the administrative litigation.My Master’s thesis starts with the meaning and function of the standard toconfirm the defendant in administrative litigation. Then it discusses the standard ofconfirming the defendant in administrative litigation which is used in our country now.Called “case studies”, I tried to find the defect of the standard-“Who is the subject ofadministration, who should be the defendant”. By comparing the differences in thestandards between our country and the foreign counties, it discusses that we can carryout the reformation in the standard of confirming the defendant in administrativelitigation. In other words, by drawing lessons from the foreign countries, we canintroducing the standard “Who implemented the act who accused”. In the end, we candraw a conclusion that it is effective for our judicial practice if we really carry out thereformation. Because it is not only convenient for a plaintiff to bring an accusationagainst an accused subject but also can made a lawsuit be effectiveness.This thesis is divided into three parts, they are introduction and three chapters.The first part is introduction which describes the current research in defendant inadministrative litigation at home and abroad. The second part is the main body. Thefirst chapter is the summary of the standard of confirming the defendant inadministrative litigation including its concept, meaning and function. The second chapter is a introduction of the standard in our country-“Who is the subject ofadministration, who should be the defendant”. First of all, by comparing thedifferences in the Administrative Body Theory at home and abroad, it discusses thestandard called “Who is the subject of administration, who should be the defendant”in our country, and then through analysing some cases, the thesis suggests that thestandard with imperfection should be reformed to improve some conditions existingrightnow, such as the difficulties for plaintiff and the lacking of effects in litigation.The third chapter discusses the necessity and feasibility for us to introduce thestandard “Who implemented the act who accused” by comparing the standard usedabroad. Finally, it draws a conclusion that it is effective for our judicial practice if wereally carry out the reformation. Because only in this way, we can ensure the rightsand interests of relevant persons of administration and control the administrativepower.