The Qualification Of The Plaintiff In The Administrative Litigation Of The Third Party Under The Application Of Protection Norm Theory

Plaintiff qualification in administrative litigation refers to the legal ability of the subject who has an interest in administrative act to initiate administrative litigation and request the court to examine the administrative act and remedy his legitimate rights and interests.The distinction between the plaintiff qualification of the administrative counterpart and the interested party adopted in Article 25 of the new Administrative procedure Law unwittingly contains two levels of understanding of the plaintiff qualification in administrative litigation,but the interest standard has obvious defects and application difficulties.German protection norms theory gathers the success of the study of public rights,and identifies public rights by objective and normative interpretation methods,which not only constructs the system of rights in public law,but also becomes the judgment standard of litigation power in German administrative litigation.The introduction of protection norm theory to reshape the qualification standard of plaintiff in administrative litigation in China plays an important role in clarifying the disputes and returning to the essence of public right relief in administrative litigation.Referring to the theory and judicial practice of Germany and Taiwan,the judicial application of protection norm theory should adopt the "three-step" method,and the scope of application should be limited to the third party litigation mode.The first chapter is the qualification standard of plaintiff in administrative litigation in China.The qualification standard of plaintiff in administrative litigation in China has gone through four stages: "legal standard period","legitimate rights and interests standard period ","legal interest standard period" and "interest standard period".Legislation on the definition of plaintiff qualification in administrative litigation mainly reflects two thinking angles: first,the scope of administrative litigation plaintiff.Second,administrative litigation plaintiff identification standards.The distinction between the plaintiff qualification of the administrative counterpart and the interested party adopted in Article 25 of the New Administrative procedure Law unwittingly contains two levels of understanding of the plaintiff qualification in administrative litigation.Based on the theory of the counterpart,the administrative counterpart obtains the plaintiff qualification on the basis of his status as an administrative legal relationship.Only in the third party litigation mode can the plaintiff qualification in administrative litigation be beneficial and justified.The qualification standard of plaintiff in administrative litigation should also be constructed around the litigation mode of the third party.The second chapter is the judicial introduction and review of protection norm theory.There is no substantial difference between "interest standard" and "legal interest standard",both of which are based on the specific identification of "legitimate rights and interests".All kinds of theories about "legitimate rights and interests" without exception fall into the subjective position of value evaluation,the concept is vague,the evaluation standard is disorderly,There are many difficulties in the application of "interest standard" in the judicial practice of our country,and the "interest standard" can not answer the content of rights in citizen administrative law.It is impossible to explain under what circumstances the rights in private law are transformed into rights in administrative law,and it is impossible to distinguish between administrative litigation and civil litigation.Due to the above predicament,represented by Liu Guangming case,protection norm theory has been introduced into the judicial practice of our country,and as an important standard to determine the qualification of plaintiffs in administrative litigation.However,the case application of the protection norm theory has not formed the unified standard and the established path,and there are some defects,such as understanding deviation,applicable machinery,too strict,unsystematic and so on.This reflects the lack of understanding of protection norm theory in China.The third chapter is the historical development and application of protection norm theory.With the development of German public law right theory,protection norm theory has flourished,showing the historical change of the new and old protection norm theory.Gerber introduced the concept of public rights into the field of public law for the first time.Jellinek demonstrated the real existence of public rights with the theory of national legal person,and explained the three forms of public rights with the different legal status of citizens in the country.Buhler's theory of "three elements of public power" puts forward an objective method of identifying public rights,on the basis of which Bachof modifies and perfects it,and finally establishes protection norm theory.With the continuous prosperity of the concept of a country ruled by law and the concept of human rights,the old protection norm theory gradually broke away from the needs of the times and exposed many defects.In this context,Assmann amended the rigorous interpretation method of the old protection norm theory and put forward the "new protection norm theory ".Under the influence of German legal theory for a long time,the study of public law in Taiwan also recognizes the essence of public rights and reflective interests.In the specific understanding of protection norm theory,the legal source of public rights includes objective legal norms,basic constitutional rights,flawless discretion claim,administrative self-restraint principle and derivative sharing claim.The interpretation method of standardizing the purpose of protection adopts objective interpretation method.The specific application of protection norm theory adopts the three-level operation process.The scope of application is limited to the third party litigation mode.The fourth chapter is the judicial application of protection norm theory.The introduction of protection norm theory as the identification standard of plaintiff's qualification in administrative litigation in China,with the center of "relief of public rights",which is conducive to the establishment of a loophole-free rights relief system,adhere to the subjective public rights protection model,link up the administrative substantive law and procedural law,boundary public rights relief and private rights relief.In order to explore the plaintiff qualification in administrative litigation in our country by using protection norm theory,we should also follow the "three steps" method.First,locate the legal norms involved in the dispute.Second,to find out the purpose of the protection of the disputed legal norms.Third,to judge the object of protection of the legal norms.Guided by the application of the "three-step" method to protection norm theory,the whistleblower does not have a public right to report the response,but only enjoys the reflective benefits of administrative law enforcement and does not have the qualification of plaintiff in administrative litigation.Based on the method of "three steps",this paper probes into the concrete application of protection norm theory in the third party litigation mode,including competitor litigation,neighboring litigant litigation,real rights litigation,consumer rights and interests protection litigation under the type of administrative litigation plaintiff qualification determination.