| With the enactment of the administrative procedure law, administrative behaviorcomes into the scope of the judicial review, our country has made a breakthrough inthe supervision of national administrative power,but the association penalty thesocial groups use the social public power to implement still did not enter the scope ofjudicial review.This paper first discusses the necessity of association penalty enteringinto judicial review, then discusses the way of judicial review, and finally discussesthe specific issues of judicial review.Associations are established by citizens or unit based on the commonneeds,register according to law, in order to achieve a common goal, they arenongovernmental and non-profit, in accordance with the articles of associationworking and managing. Associations have the following characteristics:(1)association is a registered legal person established according to law;(2) join on avoluntary and non voluntary;(3) nongovernmental and self-government in differentdegree;(4) nonprofit;(5) public welfare or mutual benefit.Association penalty is acommunity for the maintenance of community internal rules in order to realize thecommunity objective, according to articles of association, use association autonomy,punish the members in violation of articles of association, such as propertypunishment and so on. The penalty associations make according to authorization ofthe laws and regulations or commission by the government belongs to administrativepunishment,so the penalty belongs to the scope of administrative litigation casesaccording to the current administrative procedure law. This paper will be limited toassociation penalty by using the community autonomy. Sometimes articles ofassociation and national law coincide,which bring about uncertainty of power source,this paper believes that this association penalty power source is still communityautonomy rather than laws, the provisions of the law is confirmation on the corporateautonomy.The community autonomy association used to manage the member is mandatory,in order to restrict power, protect the right of members, we must provide the right relief for the members that rights are infringed by the community. This includes therelief in the social groups,administrative organs relief and the judicial relief,nowadays judicial relief is generally used by countries in the world to superviseassociation penalty, Chinese scholars also mostly support that association penaltyshould be supervised by the judicial review.So we must first choose litigation, thispaper argues that in the discussion about the litigation problem, should first determinethe nature of association penalty, then according to the difference betweenadministrative litigation and civil litigation choose the right litigation path. Asassociation penalty is a kind of social administrative behavior, administrative lawsuitin the lawsuit main body status, the content need to review and the burden of proofrules are more suitable for community punishment cases.In order to maintain the community autonomy, respect the professional of thecommunity affairs, before applying for judicial relief, Applicant must apply for thecommunity internal relief.The object of judicial review is all of association penalty,including the articles of association, the fact, the subsumtion, procedure of makingthe penalty, but taking into account the specificity of community affairs, the courtshould not review the rationality of association penalty. As the articles of association,as long as it does not go beyond the scope of the industry, adjust the rights andobligations of members associated with the industry, whether or not relates to themajor rights or major interests of the members, society groups have the power to set.As the fact, the court must review the facts that are basis when association made thepenalty, if they are proved by evidence, and the evidence is true, full and so on. Asthe subsumtion, the court must review members’ behaviors whether violate thearticles of the association,the court should review the process of subsumtionreasonably. As the procedure of making the penalty, review whether the procedure ofmaking the penalty is in accordance with the provisions of the articles and theprinciple of due process. |
