The Law-development Function Of Our Country’s Administrative Litigation:Starting From Coping With The Challenges Brought By Public Administrative Reform

The research based on the function of the administrative litigation is one of the core subjects of the science of administrative litigation law. It has an important practical significance for constructing the modern nomocratic society. The function of the administrative litigation often reflects the relationship between the administrative litigation and the society, showing that our administrative litigation is adaptive or not to the society. Therefore, the core proposition of my research is:our administrative litigation is developing the law system while in dealing with challenges brought by the current of public administrative reform.Starting from the foundation of our country’s administrative litigation law, the academic discussion of the function of administrative litigation is impressive. The research of the scholars often focused on two functions called "supervision of administrative behavior, maintenance of administrative law" and "dissolve administrative dispute, realize right remedy" This has close ties with the legislation purpose of administrative litigation law. In the meantime, we can also find that:it is because China’s economic foundation has been changing and the citizens earn more rights and this makes our country eventually developed a suitable social condition for administrative litigation. The administrative litigation law has been developing more than twenty years. And through years of judicial practice, our country’s administrative litigation is showing its function of law-development in the process of constant development.If observing widespread in the administrative litigation which is in the tide of public administrative reform, will find the administrative law system in our country is changing in public administration reform:the diversification of the main body of administrative law, the administrative law principles’ development response to the diversification of administrative behavior, and the changes of the concept of administrative law. This directly brings about many challenges for our country’s administrative litigation system, including the challenge of various administrative behavior to the formation of the examination scope of administrative litigation, the various forms of law make the choice of the administrative litigation basis a lot more difficult, etc. In order to deal with challenges that the public administrative reform brings,and to cater to the existing social demands, our administrative litigation’s proper law-making function also became the need for timely. This is also the innovation of my paper. According to the research and analysis of the judicial interpretation of the judicial documents,"the supreme people’s court bulletin" and "China’s administrative judge guidance cases ", in my opinion, the legal development function of administrative lawsuits is the development of the relief scope, the development of the principle of administrative law and the improvement in related fields of administrative management system.According to the analysis of the practice of our country’s courts, this paper finally reached the conclusion that in order to be in step with the public administration reform, China’s administrative litigation must continue to make all sorts of "response" to the "challenges", and was eventually forms a path of least resistance(this is another innovation point), the "path of least resistance" mainly includes three aspects:first, with the name of "legislation intended" to resist the question of judicial activism; Second, utilize administrative principles to regulate the discretion, and, answer the problem of the choice of the basis of administrative lawsuit; Third, with the authority of the supreme people’s court, make the case infinitely close to the level of rules-making and decision-making, and finally make the cases realize the push to improve some governmental system.