On The Preliminary Administrative Issues In Civil Proceedings

Administrative power is an important part of public power.In order to maintain social order and stability,the government tends to adjust social life through administrative actions.Administrative action wills inevitably adjusting civil relations.But when administrative behavior occurs in the civil litigation,how to deal with the administrative act,the idea of practice is different.However,any kind of thinking can not solve this problem alone perfectly.Therefore,in order to solve this problem systematically,based on our practice to discuss flexible choice of the program is necessary.The preliminary administrative issues discussed in this article are not the subject matter of civil litigation,but rather the administrative issues that have a decisive influence on the identify and resolve of subject matter of litigation in civil process.This paper analyzes the two forms of administrative precedent to civil litigation,based on these two forms obtained that under normal circumstances,a civil court can independently review the fact,unfettered administrative action;In order to prevent conflicts of civil judgments and administrative judgment,the court may suspend the civil proceedings,restored the proceedings after the final results of administrative disputes arise.The main content of this paper includes the following five parts:The first part defines the concept of administrative precedent to the civil litigation,points out administrative precedent to the civil litigation is that a prerequisite administrative action results cannot be avoided,the civil court will how to treat on the problem having a decisive influence to the civil action.Through summarizing the two forms of administrative precedent,defining the scope of this paper's exploring,the path to solve the problem was foreshadowing.And by reason of the civil administration comprising a preliminary question arising,analyzes from two aspects of the entity and the program,pointing out the causes of such administrative preconditions in the civil litigation is administrative acts' involvement to civil legal relationship in the entity,on program is the division of the civil trial and administrative trial.The second part is domestic study of this issue.The solutions that Supreme People's Court's judicial interpretation followed varied,practical approaches are also different from each other.This section had summarized the patterns of the existing judicial practices,and analyzed their advantages and disadvantages.The third part is a foreign investigation of the preliminary question.The theory and prac-tice of France,Germany,and Japan in Civil law and United States,Britain in common law were investigated.Then the value behind two specific institutional frameworks is compared.This section proposed solutions to the problem of administrative precedent is not to be applied mechanically foreign system,but should learn their values,based on our practice,summed up in line with China's national conditions.The fourth part is the final conclusion part.In respect of five existing practice modes,this part summed up the applicable standards of five modes,solved this problem flexible.Solution to the problem is mainly the following two aspects: First,generally take administrative acts as a preliminary evidence to review.Combining administrative legal relations and civil legal relationship possible to distinguish,relief of administrative action,the process and the possibility of errors,the wrongdoing of administrative organ can be changed,these three elements to analyze evidence effectiveness of the administrative action.Second,when administrative disputes arise,it should be combined with the state administrative litigation to determine whether the dispute should suspend civil proceedings.When administrative dispute has entered the reconsideration or administrative proceedings,generally,to suspend,under special circumstances is not aborted.When administrative dispute did not enter reconsideration or administrative proceedings,generally,do not suspend,under special circumstances suspended by the application of parties.Third,limit the use of administrative incidental civil action,so as to avoid confusion in the convergence program,the division of the Tribunal's impact.