Tentative Institutional Construction Exploration Of Preventive Administrative Litigation

"Administrative litigation law of the people’s Republic of China"’s（Thefollowing referred to as the "administrative procedure law")promulgation andImplementation，marked administrative procedure system was formally established inour country，is a new milestone in the history of China’s legal system.As the importantpart of modern democracy，The administrative litigation system is an importantcomponent of China’s modern legal process. However，with the deepening of thejudicial practice and the people’s growing rights consciousness， The existingadministrative procedure law is can’t adapt to the needs of new situation in manyaspects of the systems and concepts，The system of administrative litigation is facedwith the dilemma and challenges in basic theory and system design，the preventiveadministrative litigation’s missing is one of the important factors，"AdministrativeProcedure Law"’s modification and perfection become an imminent task.The substance of administrative litigation is to control executive power toachieve the purpose of protecting the legitimate interests of citizens，legal persons andother organizations，with the whole process operated in the way of the exercise ofjurisdiction by the courts. However，the current Administrative Procedure Law，which is a type of administrative litigation remedy that is run afterwards for thedamage caused by specific administrative acts of an administrative organ or itspersonnel，is difficult to protect interests and rights of counterparts timely andeffectively，even though some measures of temporary protection of rights could beapplied during the course of administrative proceedings. In order to avoid slowreaction and protection that failed to handle the emergency after the infringement ofcounterparts，it is required to break the limitations of traditional legal responsibilitiesand introduce more preventive and remedial measures. Establishing institutions ofadministrative litigation that is more risk-preventive in present system, which includesprevention before the event，temporary protection of rights in the event and remediesafter the event as a comprehensive relief system，could make right-holders obtainsubstantive legal protection through preventive administrative proceedings as thedamage caused by administrative acts or factual actions is approaching, and no laterthan the occurrence of actual damage.According to the characteristics of preventive administrative litigation，litigation subjects are specific，and must be commence in accordance with the holder’s active requisition，In the aspects of the scope of accepting cases、time、jurisdictionsystem and the allocation of burden of proof to follow specific rules；In combinationwith typical countries，and based on judicial practice of the preventive administrativelitigation，for the height of the theoretical research，The article was demonstratedthrough full comprehensive from the aspects of the necessity and feasibility ofpreventive administrative litigation，and puts forward the concrete design as regardspreventive administrative litigation in our country，For the current "administrativeProcedure Law"’s further improve and enhance，Expect to be able to provide somebeneficial reference.