Research On The Discretion In Circumstantial Judgment In Administrative Litigation

Circumstantial Judgment is a concept in theory. It is stipulated in the Article58of the Supreme People’s Court’s Explanation on Carrying Out “the AdministrativeProcedure law” of the People’s Republic of China. Circumstantial Judgment refers tothe alleged specific administrative action is illegal, but the dissolution of the specificadministrative act will harm the interests of the state or the public interest heavily. Inthis case, the court shall confirm that the alleged specific administrative action isillegal, and order the administrative organs to take corresponding remedial measures.If the administrative action caused damages to any citizens, the administrative organsshall bear the liability for compensation. In this type of judgment, judges have a lot ofroom for discretion. In Circumstantial Judgment, there are three discretion elements,namely "national interests and public interests" and "significant loss" and "remedialmeasures and liability to pay compensation." In judicial practice, this kind ofjudgment was mostly used for land expropriation and demolition cases. The judgesdon’t write the reasoning process in the judgment. Corporate interests, privateinterests and governmental interest are all regarded as public interest by Chinese court.There is no method to define what “great loss” is. The governments don’t takeremedial measures and liability to pay compensation in practice, so this piece of article can’t get the actual effect.As the birthplace of judgment, Japan had to develop its economy quickly andreduce the resistance to the construction since the World War Two, so it created thislaw system. However, it seldom be used recently. Taiwan had a similar socialbackground with Japan in the time, but now they rarely use this judgment either.Circumstantial Judgment is not the product of the rule of law, but a compromise toillegal administrative act in order to develop economy. Therefore, as a developedcountry of rule of law, the United States does not have Circumstantial Judgment,because it has strict regulations and administrative procedures. The “public interest”and “significant loss judicial discretion is worth reference. From our country’s currentsituation, Circumstantial Judgment is necessary. But it should be amended in thecorrection of administrative procedure law. In order to give guidance for judges, thelegislation should make detailed provisions on public interest and the consideredfactors in this kind of judgment. The judge should balance the interests of both partiesthroughout the trial. In the long run, Circumstantial Judgment will be eventuallyreplaced by perfect administrative procedural law and legal system.