Study On Referee And Execution Separation Mode For Non-lawsuit Administrative Execution

Since the formal establishment of Administrative Litigation Law in 1989,non-lawsuit administrative execution system has been in operation in our country for more than 20 years.The system's operating procedures can not be separated from the participation of the courts,which leads to the serious disagreement over whether the nature of executive power of non-lawsuit administrative execution belongs to administrative power or judicial power.However,the nature of this system determines to a great extent the execution of non-litigation administrative cases construction of the model.According to the concept of non-lawsuit administrative execution,our non-litigation administrative cases need to be submitted to the court for enforcement by the administrative organ.The courts review,rulings and enforce the obligations of citizens,legal persons or other organizations that fail to comply with administrative decisions according to law.This mode of execution,which is dominated by court reviews,rulings and enforcement,is referred to as the mode of referee and execution combination.The original design of the referee and execution combination mode is to change the judicial phenomenon of "re-efficiency and light human rights"existing in our country's tradition through the review,ruling and execution of judicial departments in the non-litigation administrative execution system by increasing the intensity of human rights protection.However,a series of problems emerged during the concrete operation of this model.In particular,in the fields of house demolition and land illegal execution,the court undertakes overloaded non-litigation administrative functions,the "self-determination" of courts has greatly undermined the credibility of the courts and caused the chaos of judicial power and administrative power.In order to solve the problems exposed by this mode of implementation,academic circles have proposed some reform proposals,and substantive circles have also carried out many innovations and attempts in handling cases and implementing ways.In recent years,the referee and execution separation mode making as a pilot exploration put forwarded by the Supreme Court,triggered a wide range of discussions and hot discussion.Different from the "referee and execution combination mode " of the traditional court review,ruling and execution,the referee and execution separation mode handed over to the courts and administrative organs respectively exercise the enforcement and adjudication power of the non-litigation administrative cases,in order to realize the rational allocation of judicial power and administrative power.The mode of referee and execution separation has experienced a rather long and tortuous development course,compare with the mode of referee and execution combination,the new thing about "referee and execution separation," despite the challenges of a series of theoretical and practical issues,the mode of referee and execution combination continue to expose various drawbacks while the mode of referee and execution separation continue to highlight the superiority,in our non-lawsuit administrative execution system to promote the application of the mode of referee and execution separation is very necessary,it is also an inevitable trend.Whether the mode of referee and execution separation is feasible or not,at the theoretical level,we can learn from and confirm the theoretical cornerstone and mode of implementation of the system of administrative enforcement in foreign countries.at the practical level,the effectiveness of the concrete operation of the referee and execution separation mode by punishments in judicial practice in our country can be proved and justified.Through sufficient comparative analysis and practice,it is concluded that the mode of referee and execution separation clarifies the attribute of power so that courts and administrative organs can return to their own standards in the non-litigation administrative enforcement system,it not only guarantees the neutrality,impartiality and judicial authority of the court,but also improves the administrative efficiency of non-litigation administrative cases,which is the best breakthrough to reform the non-litigation administrative enforcement system.However,it is undeniable that there are still many realistic problems to be solved at the level of legal norms and practices,especially the problems of lack of legal support and specific implementation.From the proposition of the reform experiment to the establishment of a system of legislation,the mode of referee and execution separation will inevitably have a course of continuous development and improvement.In this process,it is necessary to constantly address the issue of problem solving.Therefore,after analyzing the existing problems in the mode of referee and execution separation,I puts forward the perfect suggestions from the aspects of the perfection of legal norms,the scope of application,the main body of implementation,the assumption of responsibility and so on,hoping to help to promote the scientific operation and steady development of the referee and execution separation mode in non-litigation administrative execution.