The Judgement Standards Of The Litigation Establishment In The Performance Of Duties

For the establishment of the action for performing duties,the administrative procedure law of China and its judicial interpretation have not made specific provisions.However,the Supreme People's court put forward "five conditions" for the establishment of the action for performing duties when hearing the "Li Guoxiu case",namely: 1,The application has been made to the administrative organ,and the administrative organ explicitly refuses or fails to reply within the time limit.2,The matter applied for has a claim basis in substantive law.3,To an administrative organ with jurisdiction.4,The act of applying for administrative organ is a specific and specific administrative act.5,The refusal of the administrative organ to the plaintiff's application may infringe the subjective rights of the plaintiff.The elements of litigation,also known as the elements of litigation,can be interchanged with the elements of litigation.The understanding and application of these "five conditions" should have many details and requirements,but whether it has legal effect is questionable,and how to improve it is also worth exploring.Through sorting out the "five conditions" for the establishment of the action of performing duties,we can find that there are certain problems in the judicial practice of the "five conditions" : it can not be well matched with the action of performing duties according to authority.The action of performing duties according to authority appears in the judicial practice in the form of the plaintiff's application to the administrative organ,which conflicts with the action of performing duties according to authority brought by the second paragraph of Article 38 of the administrative procedure law,and exempting the plaintiff from the burden of proof of "application".In the course of compulsory litigation in Japan,it is clearly divided into direct compulsory litigation and application compulsory litigation through the administrative event litigation law,and then it is divided into the standard of the behavior made by the administrative organ under the application compulsory litigation.At the same time,Japan has also made clear the litigation elements of two types of compulsory litigation,which can be applied in judicial practice.In our country,there is no division of action for performing duties,nor is it clear about its litigation elements.The "five conditions" put forward by the Supreme Court of our country is roughly equivalent to the litigation requirements of Japanese application type compulsory litigation,the only difference is that our country does not have Japan's "merger litigation" requirements,which is caused by the withdrawal of litigation centralism and the supplement of class compulsory litigation in the Japanese administrative litigation system,but China does not have such provisions,so the "merger litigation" requirements It is not suitable for our judicial practice.Through the comparative analysis of the actions of performing duties between China and Japan,China should establish a perfect classification of actions of performing duties,and make clear the actions of performing duties according to functions and powers and the elements of its establishment,which should at least include four litigation elements: the performance of obligations of administrative organs,the failure of administrative organs to perform their statutory duties,the corresponding jurisdiction of administrative organs,and the litigation period in line with the statutory performance of duties.And the classification of litigation and its litigation elements to perform their duties to the level of legal norms,so that it has legal effect.The "five conditions" can be regarded as the extension of the existing legal norms in China,and the essential conditions for the establishment of the action of performing duties according to the application type;at the same time,in the judicial application,the action of performing duties can be declared to be established only after the substantive examination of the people's court.