Chinese Administrative Litigation Don’t Stop Execution Principle Research

Administrative litigation don’t stop execution principle is as an important part of administrative relief system of administrative litigation system of a specific principles,is mainly refers to the specific administrative act is made, namely presumption is effective, not because of the administrative relative person mention lawsuit of politics of the behavior and stop execution. Based on different legal and cultural traditions and the value orientation of legislation, countries around the world made different provision to this principle, mainly is to strengthen legislation to protect citizens’ rights as the value orientation of Germany, Austria, Switzerland and other countries established principles and to stop the execution of administrative litigation of administrative power of authority and public interests, improve the administrative efficiency for legislative purposes in France, Japan and Taiwan and other countries and regions have established the principle of administrative litigation don’t stop the execution. Out of specific social background and realistic national conditions, in "administrative procedural law" the legislation in our country based on the consideration of national conditions, more inclined to safeguard public interests, ensure that administrative power of authority and the administrative management efficiency to promote the rapid development of social economy, social stability, established the principle of administrative litigation don’t stop the execution. The establishment of this principle in objectively promoted the development of our social economy prosperity, and realize the value of legislation.But with the continuous development of social economy and the unceasing mature thought of democracy the rule of law, the administrative litigation don’t stop the execution principles have gradually lagged behind the modern theory of human rights, constitutional government goes against the purpose of administrative procedure law of our country’s legislation and the judicial practice caused some conflicts and confusion, also caused academia about the administrative litigation don’t stop execution principles and ceases to perform the comparison of the principle in administrative litigation and to our country "administrative procedural law" established by the administrative litigation don’t stop execution principles how to choose.This article through to our "administrative procedural law" to establish the administrative litigation not stop execution principles of social background and legislative purpose and explore the theoretical basis, and discusses its implementation in the real judicial practice situation and the insufficiency and its reason, in the other country legislation situation of our country is proposed on the basis of the administrative litigation don’t stop the execution principle of reflection and modification of "administrative procedural law" also. This article is divided into six parts:in the structure.The first part for our administrative litigation don’t stop the execution system briefly. This part mainly introduces the selection principle of "don’t stop the execution" in our country’s social background and legislative purpose and establish "don’t stop the execution" as the principle in our country, the legislation situation "stop execution" is the exception. The second part is the theoretical foundation of the principle of Chinese administrative litigation don’t stop the execution. Focus on this part as administrative litigation don’t stop execution principles theoretical basis of the presumptive legality of administrative act theory, public interest priority theory and the concept of "efficiency first, fairness considered" is analyzed, at the same time, emphatically elaborated the definition of public interest and public interest priority theory as the theoretical basis of administrative litigation don’t stop execution principles. The third part is the principle of Chinese administrative litigation don’t stop the execution of present situation and the insufficiency, introduces the conflict between legal norms and its cause in the judicial practice of contradiction, its lack of inductive is lagging behind the modern theory of human rights, constitutional government goes against the legislative purpose of administrative litigation and cause contradiction and confusion in the judicial practice. The fourth part for our country administrative litigation don’t stop execution principle analysis of the causes of defects. This part will be executed administrative litigation in our country don’t stop the principle causes of defects boil down to three:the first is the concept of obligation standard, the second is long-standing in our country "public power is superior to the private power" thought, the third is an expansion of executive power status. The fifth part is the scope of administrative litigation don’t stop (or stop) principle of comparing and using for reference. This part through a brief introduction Germany and Japan stop execution of litigation principle and related regulations and principles of litigation in Taiwan don’t stop the execution of extraterritorial related regulations and related regulations, and to our country administrative litigation don’t stop the execution principle of using for reference. The sixth principle is divided into administrative litigation don’t stop the execution of refactoring. This part mainly discusses the development of administrative law of action don’t stop the execution effect and put forward the principle of "administrative procedural law" changes.