The Design Of Preventive Administrative Litigation In China

The administrative litigation of our country mainly adopts the relief system afterwards, but lack of legal remedy in advance system. It is very incomplete for administrative relative person’s lawful rights to be protected. Therefore, as a legal remedy in advance mechanism; the preventive administrative litigation system needs setting up the prevention mechanism and system for perfecting the relative persons’ lawful rights, which is imperative. At present, the preventive administrative litigation in many western countries and regions, both in theoretical research and judicial practice, has a lot of rich experience. But in our countries’ jurists, though few scholars wrote papers to call for the establishment of preventive system of administrative litigation, the research is very weak. In order to more fully protect the administrative relative person’s legitimate rights and interests, to strengthen the supervision of administrative power, and to realize protection concept---“where there is a right, there needs to relief.”, we need to set up a preventive system of administrative litigation in our country. This paper first discusses the practical needs of preventive administrative litigation system in our nation through the analysis of the cases,then probes into the significance of preventive administrative litigation construction, with the great significance put forward to establish system of preventive administrative litigation in our country, on the basis of which it analyses theoretical and the constitutional basis of preventive administrative litigation in detail and illustrates the feasibility of that in our nation. In the third part, this paper illustrates resistance factors of setting up preventive administrative litigation from the aspects of the mature principle, administrative discretion in theory for the first time, the presumptive administrative legality theory, non- stop litigation execution principles for paving away the obstacles to set up a preventive administrative litigation system of our country in theory. Finally with the aim of achieving the full protection of the legitimate rights and interests of administrative relative persons, this paper makes a probe from suitable condition of preventive administrative litigation, thescope of accepting cases of administrative litigation, litigation types of plaintiff qualification, procedure design of preventive administrative litigation cases, the links between the ways of relief system afterwards and legal remedy in advance system and preventive administrative litigation system.