Study On Application Of Administrative Mode And Judicial Mode In Land Ownership Dispute

Article 16 of "The Law of Land Administration" stipulates that Disputes arising from the ownership or use right of land shall be settled through consultation among parties concerned; should consultation fails, the disputes should be handled by People’s governments. People’s Government has power to handle disputes in private law according to the provisions. Administrative law lists this behavior as one of the specific administrative acts-administrative adjudication. Thus, most of disputes over land title turn to the direction of the administrative process, the traditional way of civil action is replaced by “the Law of Land Administration”. But the "Property Law" reiterated the importance of civil litigation as a solution to settle the disputes in the attribution and contents of the property right, the article 33 affirmed the rights of the parties to return to the traditional way of Civil Procedure. However, the provisions of the "Land Management Law" on disputes over land title has not been modified, this paper focuses on the choice and coordination about the conflicts between the two laws.To solve the above problems, this paper is divided into four chapters.The first chapter introduces the type of disputes over land title and the current two ways of confirmation of land right. According to the causes of the disputes, the paper originality divides disputes over land title into three sections: based on historical issues, based on administrative actions and based on civil legal relationship,and later puts forward resolutions. My paper around the “The Law of Land Administration ” and “Property Law" as the center of the two laws, and describes administrative adjudication and civil litigation,and lead to the contradictions of legal appropriation of the two ways in the disputes over land title.The second chapter is to analyze the reasonableness of Administrative approval which is mainstream.In terms of their historical origins, administrative adjudication may be retroactive to the ancient "administrative and judicial line", but the two can not be compared.From the view of theoretical basis,the birth of the administrative adjudication is the result of the expansion of executive power, it is inevitable in the social development; and executive powers are increasingly concerned about the public interest and public order problems,the predecessor of the land is public property rights.Therefore, the use of executive power to the allocation of land rights had theoretical foundation. And then from the practical sense,the exercise of the executive power has advantages of professionalism and efficiency, which makes the administrative adjudication irreplaceable on the more complex disputes over land title. Despite these arguments to support the legitimacy, administrative adjudication system itself inevitably has non-neutrality, procedural irregularity,complexity of the decision and the low enthusiasm of relief and other systematical defects,administrative adjudication had become faded. this questions the applicability of the administrative adjudication in disputes over land title.The third chapter is based on the study of the first chapters I and II. First, I combine the background of degeneration of administrative adjudication system, and further analyze the narrowness and twists of it, which affected by judicial tradition,inquisitorial system of civil litigation, the professionalism of judges and the development of ADR. Then explain the importance and necessity of civil litigation in disputes over land title, and present the relationship between the application of the executive and judicial approval in static controversy(questions left over from history) and dynamic controversy(changes of rights by the juristic fact), based on the coordination between the executive and judicial powers.The fourth chapter third chapter discusses the practical application of theconclusions of the analysis.From the perspective of registration of land rights, build a strategy to resolve the dispute combining with the scope of application of administrative and judicial approval. View registration as the first criterion, the disputes on the uncompleted initial registration are historical problems, then the executive is more conducive to resolve disputes; and the disputes are registration errors after completing the registration, then you should distinguish between the causes of the problem, apply administrative adjudication, administrative relief and civil litigation to resolve the dispute.After the above reasoning,the solution to the disputes over land title is: use administrative adjudication to resolve disputes about historical problems; use administrative reconsideration,administrative litigation to resolve disputes based on administrative legality; use civil litigation to resolve disputes based on improper civil law relations.Causes all kinds of situations in the event of staggered often accompanied generate people cross the line of cases, Cases caused by mixed situations should be handled in reasonable application of "Administrative with Civil Action" and "stay of proceedings, dealt with first dispute".