The Applicable Conditions Of Judgment For Substantive Performance

To give a judgment for substantive performance and therefore to protect the rights of administrative counterpart,a judge should abide by the boundary between judicial power and administrative power.A judge should take two steps to decide whether he is allowed to give a judgment for substantive performance.The first step is to review whether the administrative power has made the premier decision.In most cases,if the defendant has not made a response or decision to the plaintiff's request,it is considered that the defendant has not made the premier decision.However,in some cases,although the defendant has not replied to the plaintiff's request or failed to deal with it,the defendant has already made the premier decision in the internal administrative procedure,and it also should be recognized as having made the premier decision.The second step is to review whether content of the defendant's duty is clear.If the duty is prescribed by law and regulations,there should be no discretion.If the duty is not derived from the law,but from the administrative contract,the antecedent act and so on,the duty should be determined when it arises.Only when the duty is clear,the judge is allowed to give a judgment for substantive performance to satisfy the request of the plaintiff.