On The Abuse Of Administrative Litigation Right

Abuse of administrative litigation means that the administrative counterpart abuses the administrative litigation right to affect the normal work order of administrative organs and waste judicial resources.In the field of administrative litigation in China,the problem of "difficulty in filing a case" has existed for a long time.However,after the implementation of the new administrative procedure law and the filing registration system in 2015,this situation has been effectively alleviated,and the protection of citizens' right of action has been improved to a great extent.However,behind these figures are not all normal and orderly administrative litigation,which contains a large number of administrative abuses.As a department law regulating all kinds of administrative relations,especially involving the relationship between citizens and administrative organs,the discussion of "abusing lawsuit" in the academic circle of administrative law is more cautious than that in the legal circle of civil and commercial law.Although Lu Hongxia v.Nantong Municipal Development and Reform Commission government information disclosure case was published in the Gazette of the Supreme People's court in 2015,which brought the abuse of administrative litigation into the public vision,but at present,China still lacks enough attention to this phenomenon at the legislative level.If we want to realize the effective regulation of the phenomenon of administrative abuse,we must clarify its nature,elements and the judgment standard in practice,and then summarize the specific regulatory measures with operability.This article will be divided into four parts to discuss administrative abuse.The first part will define and further define the nature of administrative abuse.In the second part,with reference to the regulation theory of civil abuse,the author summarizes five constitutive elements of administrative abuse: the suitability of the subject,the subjective malice of the parties,the non-necessity of litigation means,the bad result,and the causal relationship between the abuse and the bad result.Combined with China's judicial practice,this paper tries to discuss the judgment criteria of administrative abuse,including whether the number of lawsuits filed within a certain period of time is reasonable and whether the interests of the parties aresufficient.The third part will compare and draw lessons from the foreign abusive litigation regulation system.The fourth part will be based on the analysis of the domestic administrative problems and causes of rampant litigation,through the summary and reflection on the domestic existing system design,put forward for the rampant litigation regulation scheme,including clearly defined abuse of the range of the behavior,build a list of rampant litigation personnel,establish economic punishment system,perfect the system of government information publicity.