Research On The Application Of Remaking Judgments Under The Administrative Procedural Law

Since the Administrative Procedure Law of China has set the judgment type for the defendant to make a new administrative act,relevant judicial interpretation has also standardized the judgment.However,many cases reflect that even if the court decides that the defendant retakes the administrative act within the specified time limit,it is common for the defendant to delay redoing the act for two years due to reasons such as insufficient reasoning and incorrect understanding of the defendant in some cases.Some defendants supplement irrelevant evidence and still perform the same administrative acts.All kinds of circumstances show that the current rejudgment has fallen into a vicious circle that the defendant not only does not retake the administrative act,but also forms an administrative dispute again after remaking the same dispute in essence,and the court makes a judgment to cancel the rejudgment and make it again,and forms an administrative dispute again.This is not only the destruction of the judicial authority,but also increases the litigant burden,resulting in the waste of judicial resources.Therefore,how to correctly understand and apply this kind of judgment,so as to effectively respond to the people's expectations of effectively resolving administrative disputes in administrative litigation,needs to make a beneficial exploration.According to the analysis of the provisions on re-judgment in China's legislation,and the collection and analysis of the samples of judgment documents on behalf of courts in the western,central and eastern provinces of China,it is found that although the relevant judicial interpretations in specific fields have been issued successively after the "administrative procedure law",the provisions on the specific application of the re-judgment are still vague,and the court is still in a tight spot when to "should do","can do" or "prohibit doing" re-judgment in judicial practice.At the same time,in the judicial practice of remaking judgment,there are three specific forms of judgment: procedural remaking,directive remaking and substantial remaking.Based on the analysis of the samples,it can be concluded that the application of the re-judgment by the court generally presents a trend of steady increase,but there is still confusion on the application of the substantive re-judgment in general.In addition,as a legal form of judgment,re-judgment should be clearly distinguished from other types of judgment in function and application,but in practice,re-judgment is often confused with changing judgment and performing judgment.Court in deciding whether to apply for the re-judgment,should take effective protecting of rights,substantial resolving of disputes and litigation economy as guiding principles,and mainly review six elements such as the illegal reason,heavy duty,the necessity,possibility,the subject,and the time limit,then apply different rules according to the different situation.Specifically,it includes the following three rules: the binding rules,the discretionary rules and the prohibitive rules.The case of Yin heling,as a typical case using substantive judgment,shows the judicial wisdom of the court in applying substantive re-judgment,and makes a beneficial supplement to the conditions for the application of substantive re-judgment.From the judgment reasons of Yin heling's case,it can be concluded that it needs two requirements to make substantive re-judgment: one is the formal requirement,one is the essential requirement.Since both the re-judgment and the performing judgment have the content of payment and are similar in nature,while the changing judgment is a higher level of "payment",these three kinds of judgments also involve the boundary and division oflabor between justice and administration.When the administrative penalty is obviously improper,in principle,the revocation judgment should be applied,because after all,the administrative litigation involves the legal division of labor between the people's court and the administrative organ,and the people's court should focus on the supervision of the administrative organ,so as to avoid changing the administrative act too much and causing the situation of acting as the administrative authority.The difference between the re-judgment and the performing judgment is more obvious.The re-judgment can only be applied to the behavior judged by the administrative organ for the first time and endowed with the substantive law meaning,otherwise it does not meet the meaning of "re-judgment".The performing judgment involves the "right of first judgment" of the administrative organ,and the precondition of application is the "non-performance or delay of performance" of the administrative organ.That is to say,the difference between rejudgment and performance judgment is that rejudgment applies to the violation of administrative act with substantial content,while performance judgment applies to the violation of administrative act without substantial content.