On The Application Of Administrative Litigation Execution Judgment

The performance of judgment is a form of judgment in administrative litigation in China,also known as the performance of statutory duties.In recent years,with the increasing number of cases in which administrative agencies are required to perform their duties,the importance of fulfilling judgments has become increasingly prominent as the main channel for administrative inaction.However,in the process of judicial practice,due to the application of the judgment,the applicable conditions,the applicable form and the determination of the deadline for implementation,the issues are far from being unified.Generally speaking,its application is still difficult to standardize.Taking the identification of the inaction of the administrative organ in the applicable conditions as an example,the words "non-performance of statutory duties"and "performance" used in the law are neither general concepts in the theory of administrative procedural law,and corresponding legislative and judicial interpretations.Nor has it been fully explained.In specific cases,there will be a less uniform approach to the identification of administrative agencies that "do not perform their statutory duties".For these gaps in the norm,the judges are required to fill in the gaps in their application through the experience,to clarify doubts and ambiguities,and to dilute difficulties and mistakes.It is foreseeable that it is obviously difficult to reach a consensus on the free measurement of the work by the judges.In the referee,the consequences of different judgments in the same case will also appear,which will inevitably be detrimental to the establishment of judicial credibility and the relief of civil rights.Therefore,it is necessary to do some in-depth research on the standardization of the implementation of judgments.The premise of the paper is to define what constitutes an administrative lawsuit and to study what the judgment is.By sorting out the historical evolution of the Administrative Litigation Law and its related explanations,it can be known that the performance of the judgment is the form in which the court ordered the defendant to make administrative actions in the administrative litigation based on the plaintiffs application;there are two legal forms for the performance of the judgment,one of which is the judgment.The administrative organ shall perform the statutory duties of the plaintiff's request in accordance with the law within a certain period of time,and the second is to decide that the administrative organ shall re-address the plaintiff's request.The performance of the lawsuit is a lawsuit requesting the administrative organ to perform certain actions.As far as its nature is concerned,the lawsuit of performance belongs to the generalized payment of the lawsuit,and the performance of the judgment is also a judgment of the nature of payment;in addition,the performance of the judgment also has the thoroughness of the protection of rights.The legal characteristics of the response to the original request.Secondly,from the perspective of the relationship of the judgment,the research object of the judgment is studied,and the types of litigation in which the judgment is performed will be discussed.China's performance of judgments is similar to that of civil law,but its scope of application is not the same as the latter;according to the basic point of view of the relationship,the performance of judgments is usually made in the performance of the lawsuit,but also between the two There is no inevitable correspondence.The performance of the judgment is not only made in the performance,but also in the confirmation of the lawsuit and the "revocation of the lawsuit";the performance of the lawsuit is not able to make the judgment,and the executive has to Continue to fulfill the meaning.Again,from the perspective of procedures and entities,it is necessary to examine what matters the court intends to review in order to perform the judgment.The court's performance of the judgment needs to be reviewed from both the procedural and the entity.The procedural review includes whether the plaintiff has filed an application with the defendant,whether the plaintiff's prosecution time is ripe,and whether the plaintiff requested the administrative agency to make an externally effective act.And whether the plaintiff's claim is his own right;after reviewing the procedural requirements,the court should also review the substantive requirements for the performance of the judgment,including whether the administrative organ has an obligation,whether the administrative organ is not illegal,and whether the administrative agency still has As a necessity and possibility.Finally,the study of the way in which the judgment is applied is based on the content of the judgment.Through the evaluation of several applicable ways of fulfilling the judgment,namely,the specific judgment,the abstract judgment and the situation judgment,the basic judgment of the judgment method conforming to the fundamental purpose of the administrative litigation in China is obtained.The situation requires the people's court to apply different judgments to the different situations in which the administrative organ does not act as an illegal law,and then study the theoretical basis for the court to narrowly perform the judgment,and through the application of the referee timing theory and the empirical investigation of the implementation of the judgment in China,Exploring the implementation of different content of the judgment.The administrative action of the court to decide the administrative agency to make the plaintiffs application can solve the administrative dispute more thoroughly,and can better protect the legitimate rights and interests of the relative.Therefore,when the court has the factual and legal requirements,the court should decide the defendant should As the content of the obligation;the re-judgment is characterized by indirectness and incompleteness,but only the second choice is made when the referee's timing is not mature.