Scope Of Administrative Incidental Civil Action

the phenomenons of the Administrative Dispute and Civil Disputeintertwined (referred to as cross-CMBC) together are increasing inthe process of development of market economy and the transformation ofgovernment’s functions. The use of administrative incidental civilaction (short lines attached to the public) way to solve the intertwinedCMBC case， although there is no express provision of the law， but thenecessity and feasibility of its existence has been proved by practice，the line attached to the people in the judicial litigation practice isa new problem， how to properly handle the problems to be solved， theline attached to the public stage system scope of application has beenunable to meet the needs of modern society for the protection of people’srights， can not fundamentally resolve the dispute. Due to the lack ofinstitutional loopholes and legal scholars on the line attached to manypeople is not the scope of the proceedings should be expanded， extendedto the extent of how much the current did not reach a unified understandingof the practice in such cases the practice of many courts diverse.Therefore， it is necessary to attach the line to the scope of civillitigation system to do a thorough investigation to determine thecomparative study of deep lines attached to civil litigation conductedconcerning the scope.The structure of this paper is divided into four parts：The first part is the line attached to the scope of civil litigationsituation and problems. The first part of the theoretical and practicalaspects of the country with a civil action were analyzed， the followingconclusions：Although there is no clear line of legislation attached to civillawsuits， but judicial practice a lot of exploration， and achieved good social effects and legal effect. Then， compare the domestic academicpoint of view， elaborate stage line attached to the scope of civillitigation， including administrative decisions， administrativepenalties， administrative confirmed four specific administrative actadministrative permission. Finally， analysis of the current lineattached to the problems of civil litigation：(1) lack of legislation(2) lack of institutional design (3) operability is not strong (4)does not provide for specific procedures (5) conflicting judgments (6)low efficiency of litigation； indicates that the current civillitigation system attached to the line can not meet the needs of largenumbers of people line intertwined cases， people can not solve a fullrange of interwoven lines of cases.The second part is the practice of extra-territorial legislationrevelation to us. This section introduces the Anglo-Saxon countriesreferee system， the ordinary courts in accordance with the Uniform CivilProcedure hear all cases， while the analysis of the advantages of thissystem：(1) to avoid interference with the judicial administrativeorgans， fully reflects the fair value of the program.(2) fullydemonstrated the basic spirit of the rule of law " exhaustion ofadministrative relief."(3) avoid the jurisdiction of the contentiousissues. However，it has some drawbacks：the nature of the administrativereferee did not make specific provisions， not specializedadministrative tribunals. France then introduced two separate courtsystem-administrative court system and the general court system， whichcross the line of cases dealing with the public took a different approach，both can make a final judgment， but not the ordinary courts haveadministrative adjudication powers. By permission of the DisputeTribunal Rules and ancillary issues analysis， raised the issue ofjurisdiction to resolve subsidiary should be followed： a preliminary question the premise of the rule and trial rules. French people in dealingwith the line attached to a strict division of litigation， but becauseof differences in political systems， cultural traditions， historicalbackground， legal forms， and its line of civil litigation system isalso attached to differ in mature absorb and learn from foreign experiencein the process， to be specific analysis， using the appropriate way.The third point is the line of attachment theory to determine the scopeof civil litigation. First， from the discussion jurists recognize theline attached to the complexity of civil litigation， then from threeaspects， namely marking the administrative divisions of the civiljurisdiction of the established， the parties to respect freedom of actionas well as the geographical jurisdiction and level of jurisdiction toresolve conflicts， to prove that the line attached to the scope of thepublic impact litigation determined. Finally， the line attached to thepeople of Chongqing instance trial proceedings on the line attached tothe people through litigation applicable type， application phase，applicable standards and applicable way of analysis， the followingunderstanding：First，the line attached to the scope of the current scopeof civil litigation including administrative award， part of theadministrative penalties， administrative confirmed four administrativeact administrative license； while not opposed to with the developmentof the times， its scope continually expand appropriately， these fouradministrative act does not apply to the line attached to the people onbehalf of the proceedings entire range. With the increase inadministrative， civil intertwined types of cases， in order to advancewith the times， the scope of legislative action should be taken in linewith China ’s national conditions applicable to maximize the legitimaterights and interests of the parties， the substantive dispute resolution.Second， the line must be attached to civil litigation in administrative disputes the premise， only to bring the law in the first instance，can not be instituted in the second instance； Third， the line attachedto the establishment of civil litigation should be consistent with thescope of safeguarding the legitimate rights and interests of theoverwhelming majority of the people， justice the division of power andthe executive power， taking into account the reality and possibilityof the three criteria， as well as affirmative action mode enumerationplus general requirement and exclusion provisions mixed. Provide clearand specific and feasible standards for the administration of justicetrial CMBC from the legislative point of intertwined cases， both in linewith the actual needs of my people interleave large numbers of cases，but also safeguard the interests of the overwhelming majority of thepeople of litigation.The fourth part is attached to measures to improve the line of civillitigation. First， based on China ’s judicial practice， in line withthe economic purpose of litigation， uphold the authority of thereferee， the spirit of protecting the interests of the masses of thepeople of litigation， seeking truth from facts is attached to the lineto define the scope of civil litigation， and propose specific measuresto improve the program：1，on legislation to improve the existing law；2， establish communication and coordination mechanism；3， anappropriate extension line attached to the scope of civil cases；4，to take action hybrid mode；5， to take reasonable interpretation ofthe law， and so on； then， were discussed interface with other legalsystems. Criminal incidental civil action as a mature system， has awealth of trial experience， has been able to successfully develop up tonow， there must be some valuable experience and lessons learned， westill have to be careful to learn from， and innovation on this basis.Civil litigation and administrative proceedings with the convergence is to make both organically integrated to achieve a unified line attachedto the people handling the litigation， so the line attached to civillitigation practice effective and proper solution present in largeamounts.