Research On Situational Judgment Of Administrative Litigation

The conflict between public interests and private interests has always been a hot issue in the public law field in the world.The Japanese jurisprudence initiated the first instance of situational judgment of administrative litigation to resolve this issue.China is in the transition stage of social development.How to balance the relationship between the two so as to reduce social conflicts and resolve administrative disputes is also a problem that has always been concerned by law academic circles.Taiwan's acceptance of Japan's situation in China is relatively high,and it was introduced and gradually improved in the 1960 s and 1970 s.China's first case concerning the relevant provisions of the judgment was the 58 articles of the Supreme People's Court on the Judicial Explanation of Several Issues Concerning the Implementation of the Administrative Procedure Law of the People's Republic of China in 1999.At the time of social transition,there were many social conflicts in China.Article 58 played an important role in relieving the conflict between public welfare and private benefits and respecting the facts.In the end,China's "Administrative Procedure Law" implemented in 2015 clearly stipulated this special provision.This article discusses the shortcomings in the development of the Judgments in the Administrative Litigation Act of 2015,and finally puts forward measures to construct the conditions of our country's characteristics and clarify the nature of its judicial orders.First of all,this paper begins with the historical development and evolution of the Jurisdiction of the extraterritorial system,including the legislative background of the judging of the country of origin,Japan,and Taiwan of China,and introduces the situation of the current state judiciary.Second,this article specifically discusses the development of China's situational judgment.The first part discusses the judging from the absent stage of the administrative litigation law in China.The second part elaborates the legislative background and case of the emergence of Article 58 of the Judicial Interpretation of the Supreme People's Court on "Implementation of the Administrative Procedure Law of the People's Republic of China",which was established in 1999.The third part discusses that the verdict of 2015 was formally listed in the first item of Article 74 of the “Administrative Procedure Law” of China,and is the interpretation of the newly revised Administrative Procedure Law for the purpose of solving administrative disputes.Then,this article elaborates on the shortcomings of China's situational judgment system,including the following: First,the scope of application of situational judgment is relatively small.Second,the key concepts have uncertainty and ambiguity in the provisions of the law.Third,remedial measures lack operability.Fourth,personal interests are not included in the discretion of the judge.Finally,the author proposes perfect suggestions on the insufficiency of the judgment of the situation,such as constructing a judgement with Chinese characteristics,determining the definition of the situational judgment and the nature of the judicial order,and defining the scope of “public interest” by summing up the examples.Define the scope,duration and legal consequences of the remedial measures.Under the guidance of solving administrative disputes in the new legislative purpose of the Administrative Litigation Law,there will be more room for the application of the judgment.We must treat the judgement dialectically,and we must not only exert its judicial dynamism,but also impose certain restrictions on its application in order to better resolve administrative disputes.