The Prosecution Does Not Stop The Implementation Of The Principle And Its Application

Non-suspension of execution (or suspension of execution)after a lawsuit being filed is a critical mechanism in administrative litigation law for protecting rights temporarily as well as a special mechanism in administrative remedial rules. A significant status was occupied by this mechanism in view of the whole administrative litigation system. The ways in which this mechanism has been legally stipulated in many countries and regions could be categorized into two modes. One mode is represented by German legislation, which stipulated suspension of execution during the time of legal proceedings as a principle whereas non-suspension of execution as an exception. The other mode is represented by Japanese legislation, which stipulated non-suspension of execution during the time of legal proceedings as a principle whereas suspension of execution as an exception. Being based on such considerations as maintaining public interest, safeguarding administrative efficiency, etc, article44of the Chinese Administrative Litigation Law set up the principle of non-suspension of execution after a lawsuit being filed. Due to the fact that the mechanism was rather simply stipulated by the Chinese Administrative Litigation Law and serious contradictions existed between relevant rules, both disputes within scholar circles and long time chaos with judicial practice were caused. Which sort of legislative mode should be adopted in China? How should the relevant rules be constructed? With a starting point of comparing the two opposing legislative modes respectively represented by German legislation and Japanese legislation, this paper, on the basis of analyzing the legislative status quo and practical dilemma of Chinese mechanism of non-suspension after a lawsuit being filed, intended to improve relevant rules of the Chinese mechanism. The main part of this paper was concerned with revising substantive preconditions and designing procedures of suspension of execution in the aim of removing legislative disharmony and so further strengthening protection of administrative counterpart’s rights and interests.