Research On The Accepting Range Of Administrative Lawsuits

As administrative litigation system in our country started relatively late, related theories with respect to administrative litigation is not thorough, and the scope of administrative litigation has been the focus of controversy. The scope of accepting cases in administrative litigation system has attracted a lot of attention even in the initial stage of its establishment for the reasons that, on the one hand, it was a precedent of procedural laws in China, clearly defining the scope of accepting cases in the Administrative Procedure Law, and on the other hand, the scope of accepting cases in administrative litigation was determined based on the prevailing national conditions and many other factors, as the legislative modes of scope of accepting cases in administrative litigation in China are special. Although for more than20years since the Administrative Procedure Law has been enacted, the legal provisions have not been subject to fundamental changes, it has been modified and perfected in various forms such as judicial interpretation. On the issue of the scope of accepting cases in administrative litigation, the most controversial point is the appropriateness of the scope of accepting cases in administrative litigation. Most scholars think the scope is too narrow, which goes against the development of China’s administrative litigation system. China determines the the scope of accepting cases in administrative litigation based on analysis from multiple aspects and angles instead of unique standard. Besides, due to different understandings of the scope of accepting cases in administrative litigation in practice, different standards emerge.This thesis is divided into three parts.The first part presents the current situations of the scope of accepting cases in administrative litigation in China and existing problems. First of all, the current situations of the scope of accepting cases in administrative litigation in China are analyzed. China’s scope of accepting cases in administrative litigation stems from the Administrative Procedure Law promulgated in1989; Opinions on Certain Issues of Implementation of the Administrative Procedure Law of the People’s Republic of China (for Trial Implementation), which the Supreme People’s Court enacted in1990and explained and illustrated the related problem in administrative litigation; The Interpretations of Supreme People’s Court on Certain Issues of Enforcement of the Administrative Procedure Law of the People’s Republic of China, which the Supreme People’s Court enacted in2000and set the detailed and systematical regulations regarding the scope of accepting cases in administrative litigation. The development of the scope of accepting cases in administrative litigation is a process from scratch to constant modification. In this thesis, the scope of accepting cases in administrative litigation is analyzed in the aspects of legislative mode, administrative behavior and interest protection range:firstly, China determines the scope of accepting cases in administrative litigation in a hybrid legislative mode, i.e. a combination of generalization and enumeration; secondly, China determines the scope of accepting cases in administrative litigation based on the standard of specific instead of general administrative actions; thirdly, China’s administrative litigation protects legal rights, while the scope of accepting cases in administrative litigation covers only personal right, property right and related rights.Having experienced administrative trial practices for more than20years, the problems existing in the scope of accepting cases in administrative litigation in our country become more and more visible and prominent. The major problems are: firstly, the shortcoming of the scope of accepting cases in administrative litigation in China’s legislative mode. It is of particular hybrid type, namely, the combination of generalization+positive enumeration+negative enumeration, which is difficult to grasp in practice; secondly, the scope of protected rights and interests in administrative litigation in China was too narrow. When determining the scope of accepting cases in administrative litigation, the standards for personal right and property right are adopted, which greatly narrows the protection scope in administrative litigation and affects the scope of accepting cases in administrative litigation; thirdly, restrictions on review of administrative actions in administrative litigation in China. On one hand, the Administrative Procedure Law clearly specifies that only the cases concerning specific administrative actions shall be accepted and excludes abstract administrative actions, internal administrative actions and other actions, narrowing the scope of accepting cases in administrative litigation. On the other hand, only review of the legality of specific administrative actions and ignoring its rationality puts limits on the standards of the scope of accepting cases in administrative litigation.The second part discusses the standards for determining the scope of accepting cases in administrative litigation in China. Compared to other countries, the standards for determining the scope of accepting cases in administrative litigation in China are stricter with more restrictions. The standards for the scope of accepting cases in administrative litigation are not unique, but determined after analysis from multiple angles. Scholars generally believe that the scope of accepting cases in administrative litigation is determined with the standards of specific administrative actions, personal right, and property right. This thesis determines the scope of accepting cases in administrative litigation from the aspects of administrative actions, rights protection scope and parties in administrative litigation. Litigable administrative actions are not the same as the scope of accepting cases in administrative litigation, the former of which are the prerequisite and basis for administrative litigation. The rights standards for the scope of accepting cases in administrative litigation, adopting "standard of legal rights", are personal right, property right and related rights. Parties in administrative litigation include the plaintiff and the defendant. The qualification of the plaintiff and administrative subject in administrative litigation are closely related to the determination of the scope of accepting cases in administrative litigation. Too many restrictions on the qualification of the plaintiff and the administrative litigation of the defendant will further narrow the scope of accepting cases in administrative litigation.The third part shows the perfection of the scope of accepting cases of administrative litigation. As factors taken into account in administrative procedure laws in China have changed substantially, strict standards for the scope of accepting cases in administrative litigation should be changed. To advance the reform of administrative litigation system in China, the scope of accepting cases in administrative litigation should be expanded, and the standards for accepting cases should lower. To cope with the shortcoming in legislative mode of the scope of accepting cases in administrative litigation in China’s administrative procedure laws, generalization and negative enumeration which meet the needs of China’s construction of administrative laws should be adopted to include more administrative actions in the scope of accepting cases in administrative litigation. The measures to perfect the scope of accepting cases in administrative litigation in China are:firstly, reconstructing the action standard for the scope of accepting cases in administrative litigation to change the standard of specific administrative actions to the standard of administrative actions; secondly, expanding the scope of protected rights and interests in administrative litigation from the aspects of personal rights and interests protection and administrative public interest system by using "the standard of legal interests" so that not only personal and property rights are protected; thirdly, introducing administrative judgment system. The scope of accepting cases in administrative litigation is subject to the Administrative Procedure Law. In the face of constant new situations and new cases, as there is no concerning provision in the Administrative Procedure Law. a lot of offenses and right violations are excluded from administrative litigation. The Gazette of the Supreme People’s Court of the People’s Republic of China and High Courts’Selected Major Trial Cases in China are considered as the prototype of precedent system of guiding significance, so there is basis for establishment of administrative precedent system in China. Reform of the scope of accepting cases in administrative litigation is also an important part of the reform of the administrative litigation system, and improving the scope of accepting cases in administrative litigation plays an important role in the development of China’s administrative litigation system...