The Research In Institution Of Judicial Suggestions In Administrative Litigation

From 2009, “Active Judiciary” has gradually become the basic concept of guiding the judicial work in Chinese judicial system. Its connotations can be summarized as service judiciary, initiative judiciary and efficient judiciary. Under the idea of “promoting the modernization of national governance system and governance ability”, it is undoubtedly that new requirements for judicial systems--an important part of the national governance system--have been put forward. Due to its flexibility and advantages, judicial suggestion provides opportunities for the benign interaction of jurisdiction and administrative power in administrative litigation. Besides, it also plays an important role in preventing and reducing conflicts and disputes, supervising the administration according to law, and maintaining the social stability and harmony. Therefore, judicial suggestion has become a new effective measure in stabilizing harmony in societies, putting the “Active Judiciary” into practice, participating into social governance innovations, and realizing the unification legal effect and social effect.However, there are some problems existed within judicial suggestion in administrative litigation, both on the legislation layer and judicial practice layer. For example, the low legal force of a series of judicial documents issued by the Supreme People’s Court, the loss of relevant regulations in the Administrative Procedural Law, non-standard operations of the system in practice, and the lack of related supporting mechanism etc. All these factors are hindering the performance of judicial suggestions. Therefore, it is extremely urgent to study how to further standardize the legal operation of the judicial suggestions system.This paper mainly consists of four parts.Part 1 systematically analyzed the basic theories of judicial suggestion system in administrative litigation. Firstly, it interpreted the judicial suggestions, administrative judicial suggestions and relevant concepts, and distinguishes them with other relevant concepts to define the concepts of judicial suggestions in administrative litigation. Secondly, it discussed the unique value of judicial suggestions in administrative litigation, which is to solve administrative disputes in a circuitous way, prevent and reduce administrative conflicts, and indirectly supervise law-based administration of government. Finally, the legality, necessity and feasibility that must be strictly followed when applying judicial suggestions have been discussed as well.In the 2nd part, the basis for judicial suggestions in administrative litigation has been analyzed. It concluded that the judicial suggestions in administrative litigation have the characteristics of locality, contemporaneity, and full of Chinese features. This conclusion was drawn based on the Chinese law tradition, which incorporates humanity, reason and law, the operating mode of distributing, cooperating as well as restricting, and the prevailing “Active Judiciary”.The content of Part 3 consists of empirical investigation for the judicial suggestions in administrative litigation. Based on regulation basis, macro operation and micro analysis, it should be envisaged that the judicial suggestion system in Chinese administrative litigation is insufficient. This paper has selected 41 judicial suggestion papers as study samples, made in-depth investigations on the effects and existing problems of judicial suggestion systems in administrative litigation, and analyzed causes for such problems. The investigations had been executed from following aspects: issuers, suggested contents, receivers, document formats, types, legal force and so on.In the last part, based on the analysis of current situation, the specific routes to regulate the judicial suggestion system in administrative litigation has been proposed. Firstly, the relevant terms in Administrative Procedural Law must be improved in order to expand the applicable range of judicial suggestions. The scope of receivers has to be extended to cover the administrative authorities as defendants, and the document formats has to be standardized. Secondly, five mechanisms should be established so as to cooperate with the operation of judicial suggestion system in administrative litigation, including categorization, assessment, publicity, review and withdraw. Thirdly, for the benefits of judicial suggestion in administrative litigation, it is necessary to strive for the supports of Party Committee and the National People’s Congress, while enhancing the linkages between various social sectors.