A Study On The Theory Of The Standard Timepoint In Administrative Judgment Res Judicata

As one of the third effective dimensions to determine the final judgement, the standardtimepoint in administrative judgment res judicata finds itself in a greatly embarassed situation,for neither having got the comparatively consistent and mature theoretical cognition like civiljudgment res judicata, nor being mentioned or applied deadly little, which lead to its value notobtaining deserved in China’s judicial proceeding, its value unable to get its deservedembodiment and application.On the premise that the standard timepoint in administrative judgment res judicata can beapplied in currentjudical frame, there existing even error in making clear and correcting thecognizaion, by analyzing and investigating relevant viewpoint which is represented by thestandard timepoint in administrative judgment res judicata in Japan, Chinese Taipei, and theMainland China and combining with administrative litigation proceedings characteristic,thisessay has suggested that the standard timepoint in administrative judgment res judicata shouldbe "the time when making of administrative orders" as the principle, and "the trier of fact tothe ending of the debate" as the exception. Owing to its simplification in judicial operation, itis unnecessary for judges to give consideration to impacts of various elements, practicabilityis added, meanwhile, it conforms to the priciple of "To collect evidence, and then make thejudgment".Main body of this essay is made up of four parts except introduction and epilogue. Themain content can be summed up as follows:Part I: In this part, I having made a brief introduction on. the basic theory、content andvalue of two conceptions between administrative judgment res judicata and the standardtimepoint in administrative judgment res judicata for the purpose of making reader easier tounderstand the general idea of this article.Owing to the impacts brought by litigation category, regulations by entity law, party’sclaims and litigation nature, it may vary from case to case. In Mainland China’s discussionfaced with this question, different viewpoints have formed arised from different researchpaths.Part II: Introduced briefly the mainstream point of the standard timepoint inadministrative judgment res judicata in Japan’s and Chinese Taipei’s scholarship, combingdetailedly for it in current Mainland China’s scholarship. In this part, having been discussed the two elements at first, which is "marked by the former judge possibility of court", and theother is "opportunity for clients to claim rights", are mainly considered in determiningstandard timepoint in civil judgment res judicata by common theory in civil law countries.But in the field of administrative ligitation, two major theories are formed which is marked by"the making of administrative orders", and the other concerns" verdicts"(when the oral debateis completed), that is the same case with China Taipei for the cognition in the era of oldadministrative litigation law. After the issue of new administrative litigation law, cognitionsfor the standard timepoint in administrative judgment res judicata have greatly made a change,holding that it varies from case to case because of the impacts such as litigation category、regulations by the entity law, claims for party and litigation nature.Part III: The third part has made a brief comment on various mainstream pointviews forthe standard timepoint in administrative judgment res judicata, pointing out its followingcharacteristics:1、the standard timepoint is not fixed at some point by Japan’s and ChineseTaipei’s scholarship, on the contrary, they admit the exceptional cases besides principles;2、Scholarships in Chinese Taipei hold that with the increase in types of administrative litigation,the standard timepoint can’t be fixed at some point and need to add involved element;3、Thecognition for the standard timepoint in administrative judgment res judicata in MainlandChina has involved from applying mechanically relevant theories of civil judgment resjudicata to developing into a possession of exploring independently recently, from sticking to"the sole opinion" to" judgment by specific circumstances".Part IV: In this part,first discussed the four significant elements to determine thestandard timepoint in administrative judgment res judicata: the principle of the division ofpower、respect for the first timepoint to determine the right of the executive power、respect forprotection of the rights and final settlement by Judicial. All the considerations for aboveprinciples is unlikely to determine the standard timepoint in administrative judgment resjudicata, at some timepoint mechanically. And then according to present points and doctrinesby scholarships both at home and abroad, this essay has put forward its basic view: thestandard timepoint in administrative judgment res judicata should be the instrument ofprinciples of "the time when making of administrative orders", with exceptions of "the trier offact to the ending of the debate"(when the oral debate is completed); at last, demonstrate themain arguments through various research into the types of administrative litigation.