Research On The Recognition And Judgment Of Failure To Perform Statutory Duties In Accordance With The Law

Item(6)of article 12 of the administrative litigation law,as one of the scope of administrative litigation cases,has its particularity.Especially after the rectification of the Administrative Litigation Law in 2014,this item has increased the content of the "and other more legitimate rights and interests.",and the administrative relative's rights and interests protection range changed from "personal rights and property rights" to "personal rights,property rights and other legitimate rights and interests".By taking legislative measures which can be called etc.Out of etc.of including other rights besides human rights and property rights,it reinforced supervise towards the administrative rights from the judicial rights,which offer better and broader protection to all kinds of the rights that private party have cases of administrative litigation.Administrative litigation cases differ from other administrative cases which People's court accepts because of their unique operation rules which form in the process of substantive judgement of administrative litigation cases.” The Supreme People's court has also reinterpreted this provision in the administrative retrial cases it hears,which conveys the prudence in the interpretation and application of "legal duties".It reckons that the lawful duties here refer to administrative organization has direct and specific duties to handle matters which administrative counterparts applied for according to laws,regulations and rules etc.The writer has re-combed the definition of the lawful duties under the article and observed deeply into the affirmation rules and standards in the administrative litigation cases according to the explanation of the supreme people's court and also combined with cases which don't execute the lawful duties after the rectification the Administrative litigation law in 2014.The writer has also sorted manifestation of cases which don't execute the lawful duties from the four following aspects: refuse to execute,don't answer,postpone to execute and partly execute.The writer has concluded the traits the different manifestations and the correspondent judgments which can be applied on them on the above basis.The most common judgement measures for cases which don't execute the lawful duties are setting an execution deadline,affirming irregularity and rejecting the sue.The author summarizes the problems from three aspects while sorting out the judgment methods adopted by the people's courts at all levels in this case.The first question is the affirmation the judgement time.That is the law and fact to be investigated should be based on the time,which has an enormous influence in the judgement results.The second question is the choice between procedural performance judgment and substantive performance judgment.The writer has found out that substantive execution judgments only exist in exceptional cases,whereas most of the execution judgments have adopted procedural execution judgments.The third question is illegal judgement affirmation whose typical disadvantage are less helpful and limited in adaption for specific situations.The writer studied and discussed from the three above aspects on judgement measures taken for cases not executing the lawful duties,meantime combed the traits and rules lying in the judgement measures chosen by those cases so as to further serve the substantive trial.