The Study Of System Of Preventive Administrative Litigation

There are three types of protection of counterpart's rights in administrative litigation legislation all over the world: ex post protection,temporary protection and preventive protection.The expost facto protection of the relative's rights has long been a common practice in the world.Our country has followed such a mode of protection of the relative's rights,which is the common administrative litigation system.However,with the advent of the "administrative state" and the requirements of the construction of the "rule of law country",this kind of relief measures after the event can not well adapt to the basic national conditions of our modernization and informatization.Therefore,it is self-evident that it is important to establish an effective,timely and no loopholes mechanism for the protection of administrative litigation rights and to improve the system of protection of administrative litigation rights in China.Through the continuous exploration of the preventive administrative litigation system,the academic circles have provided a relatively profound theoretical basis for the construction of the preventive administrative litigation system in line with China's national conditions.However,the construction of preventive administrative litigation has not yet formed a unified standard.Firstly,This paper starts with the concept of preventive administrative litigation system,and analyzes its connotation,sums up the basic characteristics of this system should be preventive,direct,stop,and reserve.In addition,the constitutional and theoretical combing of the justification for constructing a preventive administrative litigation system was carried out.Secondly,through the analysis of the theoretical,legislative and judicial dilemmas of preventive administrative litigation in China,the necessity of establishing preventive administrative litigation system in the practice of rule of law in China is further determined,and the opportunity of theoretical improvement is also found.Finally,the theory of preventive administrative litigation is transcended through the integrated construction of systematic preventive theory;through the analysis and positioning of the types of preventive administrative litigation,preventive administrative litigation is divided into two kinds: preventive confirmation litigation and preventive omission litigation,and preventive confirmation litigation is classified into broad confirmation litigation,and preventive omission litigation is positioned as negative.In terms of prosecution and filing of cases,we should establish a double prosecution subject parallel to the parties and the procuratorial organs: to bring a preventive lawsuit of private interest by administrative counterparts and stakeholders to safeguard their legitimate rights and interests,and to bring a preventive lawsuit of public interest by the People's Procuratorate against the interests of the state and society,so as to realize the comprehensive development of the personal and social fields.Guarantee;Setting up pre-trial procedure in the trial stage,coordinating and dealing with procedural matters and litigation focus of preventive administrative litigation before court trial,in order to ensure the full use of judicial resources and reduce the burden of litigation;In the judgment stage,according to the corresponding types of litigation,three kinds of judgments are constructed: rejecting the original complaint request,confirming the judgment and fulfilling the judgment,and three kinds of judgments are made.The binding force,determination force and execution force shall be clearly defined.