Research On The Problems And Countermeasures Of Remaking Judgments In Chinese Administrative Litigation

The system of remaking administrative lawsuit has been enforced in our country for a long time, but official department and experts and scholars have also been questioning it, for they think it breaches the principle of making sue and judgment consistent and it may cause the power of judicature intervenes the power of administration. The legislation of remaking judgments is not perfect yet, and there are many law vacua, also the criterion of the court’s practice is not unified, so the current situation of remaking judgments now is not so good, and the circumstances of remaking judgments unlawfully or overduely or repeatedly occur again and again. The new Administrative Procedure Law has made great reforms, but doesn’t cover the content of remaking judgments, and nearly doesn’t respond many problems occurred in reality. Scholars in our country have made lots of research works of the criterion of remaking judgments and the benchmarks of remaking judgments etc. This text wants to focus on discussing problems above based on combing similar systems abroad and many case analyses.The content of this article consists of three sections:The first section analyses the legal meaning, legal characteristic and the existing necessity of remaking judgments, and makes a primary orientation of remaking judgments, also states the realistic existing valuation of remaking judgments now in our country. The second section analyses some illegal and unreasonable circumstances which exist in the legal rules and practices of the remaking judgments in China, and proposes pointedly some problems, which mainly analyses the aspects of unclear standards of remaking, the not suitable limitation of the power of remaking, the not concrete requirements of making, and the not perfect legal remedy of remaking. The third section proposes some suggestions to the future reform direction of remaking in China, including mainly the aspects of the standard of remaking, the procedural requirements and substantive requirements of remedy, the application analysis of forbidding remaking, and legal remedy of remaking. The author thinks that to see from the point of our judicial situation, the remaking judgments have realistic significances in our country. Although now there are many theoretical and realistic problems in remaking,I believe that with the improvements of our country’s politic level, the system of remaking will become more and more perfect.