Paper On Improvement Of Judgement On Prestation Of Administrative Procedural Law

In 2014, under the times’background of advancing the rule of law completely, the Administrative Litigation Law (1989) confronted the first overhaul. Before revising the law, the demarcation line between judgement on execution and judgment on prestation is not very distinct. In our judicial practice, fulfillment of judgement on execution substituted for the functional situation of judgement on prestation is a usual thing. And also the response to the plantiff who requires prestation about responsibility of "benefit payment", using judgement on execution to solve this task wrongly. This is caused by lack of legislation. So as to solve this unreasonable functional dislocation, it’s necessary to introduce judgement on prestation. Meanwhile, considering that new law expands the scope of cases, and giving "judgment on prestation" a more complete expression in adminiatrative litigation law is necessary, by doing this indicates the difference between "judgment on execution". From two considerations above, "judgement on prestation" is established. Even though it is a simple law provision, however it has a significant meaning. The accumulation of prestation judgement, which solves the existing phenomenon of prestation in reality and the serious condition of lacking accordingly evidence in administrative litigation law, and it also corresponds to the realistic demand of judgment activities. The important thing is helpful to solve administrative dispute essentially. In China, judgement on prestation is a new system. The so-called "judgement on prestation" refers to the kind of judgement which claims that the people’s court should order the administrative organ to bear the payment obligation in accordance with law, on the condition that citizens, legal entities, or other organizations who possess the right of claim in terms of public law, refuse to accept the behavior of an administrative organ who fails to perform the payment obligation. The judgement on prestation reflects the supervising function of jurisdiction. The judgement on prestation belongs to a main body judgement. The people’s court made a decision about judgement on prestation which must satisfy five requirements at the same time: First, the defendant is obligated to take responsibility of prestation. Second, the defendant don’t conform the responsibility of prestation. Third, the plaintiff has right to ask for prestation. Fourth, the defendant fails to perform obligation of prestation and fails to give any reasons which are stipulated or approved by law. Fifth, there’s still a meaning for plaintiff if the defendant is pronounced to conform prestation responsibility. In extraterritorial areas, in Germany and Taiwan of China, the development of this kind of system is close to maturity, merely the system of our country’s judgement on prestation of administrative litigation is relative with that general system. Compared with the judgement on prestation of our country, their general judgement on prestation mainly displays:First, its scope of application is more extensive, and action of prestation and any other action by administration department follow the judgement on prestation. Second, applied conditions are more meticulous. Especially according to the theory of "time to make judgement", it solves the problem of judgement on prestation. It’s not difficult to see that the system of our country’s judgement on prestation of administrative litigation just starts, the specification of a law is not proper, it will meet problems in practical applications inevitablely. Regarding to the system of judgement on prestation of our country’s administrative litigation law, it’s necessary to add judgment basis, widen its applied scope, clarify the implication of the defendant "don’t performance" prestation behavior, clarify the following deadline of judgement on prestation, clarify the content of defedant’s prestation. The improvement about the system of judgement on prestation is a requirement in accordance with law sentence, and it’s also a requirement of the rule of law. The key point is to improve system of judgement on prestation to solve administrative dispute essentially, it will boost the building of public service oriented government.