Research On Active Judicial Problems In Administrative Litigation

In contemporary China,owing to the differences of the political framework and the justice system,they determine the huge differences between the active judiciary in the context of China and the judicial activism of western countries.In response to the financial crisis,the Supreme Court in 2009 put forward the active judiciary in the context of China for the first time,and the judicial practice vigorously advocated it as a judiciary philosophy.It is a kind of service justice,active justice and high-efficiency justice,and it has important significance in easing social contradictions and maintaining social stability.But as the judicial practice spares no effort to carry out the active judiciary philosophy,the chaos of the active judiciary also emerge in endlessly,they gradually make the active judiciary deviate improving the judicial efficiency and improving the judicial attitude from the track.At present,the research of the active judiciary in China doesn't distinguish the different litigation properties,and makes that the research of the active judiciary problems of the greater influence on the social order stability in the administrative proceeding can not be typed and systematized,in turn,it can no longer be the reaction of the research results into the comprehensive system in the judicial practice of the administrative proceeding.So consummating the research of the active judiciary problems in the administrative proceeding gradually becomes an important corpus of the active judiciary problems in theory research.Therewith,firstly starting from the basic concept of defining the active judiciary,this paper expounds the three development stages of the active judiciary,the active judiciary that has an important value makes the outline and the description at the same time,and discusses the active judiciary has four essential characteristics,namely the duality of the subject,the certainty of the objective,the level of the application and the way of the coordination;Based on this,the paper analyzes the conjunction point between the administrative proceeding in China and the active judiciary,then the paper introduces the landscape of the present situation of administrative proceeding in China and the active judiciary with the value of the target in the administrative proceeding at the same time,it summarizes several basic types of the active judiciary practice of the contemporary China in the administrative proceeding and clearly points out it that has three typical forms,namely the law application of the administrative proceeding,the mediation system of the administrative proceeding and the judicial proposal of the administrative proceeding;After that,the paper inspects and elaborates the present situation of the typical forms of three types of active judiciary practice based on the administrative proceeding,and analyzes in detail the problems that exist in the judicial practice in the administrative proceeding,including the rationality standard of the law application of the administrative proceeding is fuzzy,the person value of the judge shackles of the judicial supply and the supervision of the relevant evaluation system isn't still perfect,besides,the important role of the mediation system in the administrative proceeding isn't still clear,its associated specific operation procedure isn't still completed,and the related relief mechanism lacks of corresponding specification,then between the ideal vision and the actual operation in the administrative proceeding have huge differences,the scope of the specification and the type are relatively narrow and single and the relevant operation mechanism is randomly scattered;To further clarify and improve the concrete countermeasures of the relevant system construction of the active judiciary practice in the administrative proceeding,including ensuring the uniformity of the application of the law,enhancing personal professional quality of the judge,improving the supervision and evaluation mechanism of the law application,clarifying the legal status of mediation system of the administrative proceeding,developing the related operation procedures,ensuring the judge that can adhere to neutrality and strengthening the remedy mechanism of the mediation in the administrative proceeding,improving the importance of the judicial proposal in the administrative proceeding,standardizing the scope and the type of the judicial proposal in the administrative proceeding and strengthening its related regulation system construction.