Study On The Scope Of Military Administrative Litigation Under The Pilot Reform

The Modern Army must be the Rule of Law Army.With the "rule Governing the Army according to Law and Strictly Administering the Army" to the basic strategy of governing the army,the construction of the rule of law in the military has entered the fast lane."Administering the Army according to Law" focuses on "Ruling the Power according to Law." The military,as a highly concentrated armed force,should be supervised by its power.As a means of judicial power to supervise administrative power,administrative litigation can play a judicial supervision role on the one hand,and can effectively resolve administrative disputes on the other hand,and effectively protect the legitimate rights and interests of relatives.On May 23,2017,President Xi Jinping personally approved the "Provisions on the Military Administrative Trial Pilot Work in Military Courts in Guangzhou and Beijing" and the "Opinions on Trial Implementation of Military Administrative Cases"(hereinafter referred to as "opinion").Subsequently,on July 3,2017,authoritative media such as the "Liberation Army Daily","China Military Network" and "Defense Ministry website" all released news,saying that the military administrative litigation pilot work was launched a few days ago.This means that the pilot work of military administrative litigation in our country has taken a crucial step from planning preparations to piloting cases,markinga significant progress in the exploration of the establishment of a military administrative litigation system.The scope of the case is not only the basis of the entire military administrative litigation work,but also the difficulty in establishing the military administrative litigation system.The determination of the scope of military administrative litigation is more difficult than ordinary administrative litigation because of the particularity of military administrative actions,the high degree of uniformity of the military,and the pioneering nature of military judicial practice.This paper takes the scope of military administrative litigation under the reform pilot as the research object,and uses the research methods,comparative research method,literature research method and case analysis method combined with theoretical analysis and practical analysis to analyze.Taking questions,analyzing problems and solving problems as research ideas,collecting data comprehensively,conducting research on the spot,then summarize and analyze the problems in the scope of the case.On this basis,combined with the status quo of the Chinese military,the current legal provisions and foreign advanced practices,some suggestions for the scope of military administrative litigation in China are put forward.The first chapter clarifies the relevant important concepts of the scope of military administrative litigation,and lays a theoretical foundation for the full text.Military administrative acts refer to military organs,military units and their staff members with administrative powers,who exercise administrative powers on specific matters and specific legal issues,and have legal effects on relatives.The scope of military administrative litigation refers to the scope of military courts accepting military administrative litigation cases,that is,which military administrative acts can be handled by military courts in litigation procedures.The second chapter analyzes the current situation of the scope of the military administrative litigation in China,including the specific provisions of the scope of military administrative litigation under the pilot reform and the judicial practice of the pilot military court.The third chapter puts forward the problems existing in the scope of the militaryadministrative litigation in China,and analyzes the causes of specific problems.The problem is reflected in the following: First,the legal basis for the scope of the case is weak.Mainly because the military legal norms involving military administrative litigation are relatively lagging,and the basic theoretical research on military administrative litigation is stagnant.Second,the specific provisions of the scope of the case in the "Opinions" are flawed.Some regulations conflict with the superior law,some regulations contradict other provisions of the "Opinions",and some provisions are incomplete.Third,the scope of the case is too narrow and practical.The limited jurisdiction of the pilot courts makes it impossible for some cases that fall within the scope of the case to be accepted.The military reforms affect the functions of the military organs,which leads to the lack of factual basis for the military courts to accept cases.The practical obstacles faced by the military itself are objectively hindering them from filing administrative litigation and reducing the practicality of military administrative litigation.On the basis of the previous analysis,the fourth chapter combines the actual situation of the military and the relevant provisions of China's administrative litigation law,and makes recommendations on the scope of the military administrative litigation in China with reference to the mature foreign experience.The proposal is mainly considered from two perspectives.It is necessary not only to improve the specific design of the scope of the case,but also to improve other institutional mechanisms related to the scope of the case.On the specific design,on the one hand,the contents of the "Opinions" on the scope of the case are adjusted,the military administrative compulsory measures that restrict personal freedom are excluded from the acceptance,and the property enforcement measures are included in the military audit process;on the other hand,under the restrictive principle,the scope of the case is appropriately expanded.Include the specific administrative actions and some normative documents in the internal information disclosure work of the military.On other systems,on the one hand,it is necessary to expand the scope of plaintiffs and grant non-military qualifications to plaintiffs;on the other hand,it is necessary to create a good legal environment for military administrative litigation,establish a more reasonablemilitary administrative litigation jurisdiction system,and form a diversified military administrative relief mechanism.