The Improvement Of Trial Pattern On Crossing Cases Between Civil And Administrative Action

With development of social politics and economics,increasing civil activities are restricted by the national administrative power.Meanwhile,their influence on and intervention in the national administrative power are also increasing.As a result,intersections and overlaps between civil disputes,which occur in civil activities,and administrative disputes,which occur in exercise of administrative power,emerge.Cases,which involve both civil disputes and administrative disputes based on the same legal fact,are commonly called “Civil-Administrative Intersection Cases”.Such cases account for a certain proportion of China's judicial practice and show an uptrend.However,China's existing laws and regulations are not complete enough to solve some problems in Civil-Administrative Intersection Cases,such as specific case filing & investigation procedures,applicable trial models and applicable adjudication procedures.In the judicial practice,trial models for such cases are various.Some courts hear administrative disputes first and then hear civil disputes;some courts hear civil disputes first and then hear administrative disputes;some courts assume that the relevant administrative act is legal,and then announce a direct adjudication regarding civil disputes without sessions;and some courts execute administrative proceedings along with civil proceedings.In a word,different trial models exist in China.Since courts apply different trial models to the civil disputes and administrative disputes that are based on the same legal fact,they may make different conclusions and even different judgments.This causes judicial confusion and affects judicial authority to some degree.In terms of China's revised Administrative Procedure Law and its judicial interpretation as well as Civil Procedure Law and its judicial interpretation,trial models for Civil-Administrative Intersection Cases have a preference for settling civil disputes in particular types of administrative lawsuit and applying the lawsuit suspension system.However,a number of new problems arise in the judicial practice,including limited scope of settling civil and administrative disputes together;the judge's excessive discretion;low efficiency due to separate case filing;impediment of cross-administrative region jurisdiction system;buck-passing in the process of solving preliminary problems;and infringement of outsiders' lawful rights and interests caused by settling civil and administrative disputes together.Therefore,it's very important to find a way to settle civil and administrative disputes together in administrative lawsuits,in order to improve trial efficiency,ensure judgment quality and safeguard litigants' lawful rights and interests and uniformity of jurisdiction.In this paper,trial models for Civil-Administrative Intersection Cases in domestic and foreign judicial practices and their problems were analyzed and compared.Then,three guidance principles for trials for Civil-Administrative Intersection Cases were proposed: judicial fairness-efficiency balance principle;principle of combining litigants' autonomy of the will and the judge's interpretation right;and individual case-oriented principle of solving preliminary problems.In addition,specific suggestions were proposed to improve the trial model of settling civil and administrative disputes together in administrative lawsuits: expand the case scope of settling civil and administrative disputes together in some circumstances;attach importance to combined use of litigants' autonomy of the will and the judge's interpretation right;civil and administrative cases are consolidated for filing;determine preliminary problems in Civil-Administrative Intersection Cases at first;and improve the legal relief system in settling civil and administrative disputes together in administrative lawsuits.With a focus on judicial practice,new problems in trial practice after promulgation of the revised Administrative Procedure Law and its judicial interpretation were analyzed in this paper.Then,relevant suggestions were proposed to realize scientific legislation and judicial fairness for Civil-Administrative Intersection Cases,in order to provide some useful reference for China's trial practice for such cases.