On The Relation Between The Defendant In Administrative Litigation And Administration Body

It’s said in administrative law and administrative litigation law that administration body includes administrative agency and organizations authorized by laws and regulations. Defendant in administrative litigation includes administrative organ and organizations authorized by laws and regulations, so defendant in administrative litigation is the same with administration body. There’re many defects to recognize the relationship between them in such way. It leads to the tedious in recognizing defendant, affects private party’s action to exercise litigious right, and restrict the development of administrative body theory and system. Searching CNKI, there are only two articles whose content is the relation between defendant in administrative litigation and administration body. So, we didn’t take the problem seriously. As a result, author thinks that we must reflect the relationship between them and perfect it.The author assimilates the overseas newest research results, first study overseas legislative examples, and take Japan, France, Germany, the US and Britain as the example. They have difference in recognizing administration body and defendant in administrative litigation, but for the relationship, the practice of each country is almost the same, defendant in administrative litigation may be acted by administration body and non-administrative body which perform the administration authority. Dealing with the relationship between defendant in administrative litigation and administration body in this way, foreign countries don’t have the problems like us.Secondly, under the guidance of Hegel’s theory that how to deal with the relationship between "what should be" and "what is being", author analyzes the value and function of defendant in administrative litigation and administration body. Author thinks that defendant in administrative litigation which acts as a party in administrative proceedings; the key importance lies in the convenience in lawsuit, to solve the administrative disputes promptly, stable social relations, and finally realize the value of law. The function of administration body is administrative decentralization and keeping in balance, to prevent the centralism of authority which causes the absolute corruption.Based on this, author advocates to perfect the relation between defendant in administrative litigation and administration body, to make them get rid of mutual restraint. Under the request of administrative decentralization, in light of management science and science of administration, we can use the concept of the ownership of administrative authority and the exertion of administrative authority, and take the ownership of administrative authority as the administrative main body, including the government and organizations authorized by laws and regulations. Under the guidance of efficiency standard, considering the elements like be convenient for Plaintiffs to filed the charge, be easy for court to make the decision and so on, author wants to perfect the system of defendant in administrative litigation, and takes the exertion of administrative authority as defendant in administrative litigation, including administration body and non-administrative body which performs the administration authority.As a result, author re-locates the relation between defendant in administrative litigation and administration body from the perspective of ownership and exertion of administrative authority. The scope of defendant in administrative litigation isn’t the same with that of administration body any more, and it contains but is not restricted in administration body. This theory is more close to foreign countries’, and what’s more solid is it can solve a series of malpractices very well.Finally, it’s really hard to transform a viewpoint that is widely accepted and adopted by judicial practice, but the difficulty can’t become an excuse of the evasion. Nowadays, it’s just a theory in research of the relation between defendant in administrative litigation and administration body. However, the legal system is always formulated and enforced under the instruction of certain legal theory. The author believes that with the passing of Administrative Compulsory Law, the theory of the relation between defendant in administrative litigation and administration body will be accepted by law. The law which is a science has a high degree of consistency with legal theory. Therefore, the clear recognition of the relation between defendant in administrative litigation and administration body will promote the consummation of administrative law standard, and promote the construction of rule of law. All this is the legal person’s responsibility.