Judicial Cognizance Of Administrative Supervision

With the deepening of the construction of the government under the rule of law,the importance of administrative level supervision is becoming more and more significant.As one of the ways of self-supervision in the administrative system,the administrative level supervision behavior has the characteristics of hierarchy,selfdiscipline,comprehensiveness,efficiency and so on.Generally speaking,it is classified into the category of internal administrative behavior,so it is exempt from judicial review.However,in practice,this act is very litigable.In order to seek the right relief,relevant citizens have brought a lot of administrative reconsideration and administrative litigation.In the face of citizen's reconsideration or litigation application,the administrative subject and judicial organ often simply include the disputed act into the category of administrative level supervision and then reject the application.But the right relief applicant can't recognize the result of the administrative body and the judicial organ,so the right protection is repeated.The basic reason is that the connotation and extension of administrative level supervision are not clear,and there is no unified identification standard of types and elements.This is not only not conducive to the protection of the legitimate rights and interests of relevant citizens,but also likely to hinder the improvement of judicial credibility and have a negative impact on the construction of the rule of law government.Therefore,to clarify the connotation and extension of administrative level supervision behavior,to sort out the current court's judicial recognition logic of administrative level supervision behavior,to examine the status quo of judicial recognition,to draw out the basic boundaries between similar behaviors and to type them,is the key to solve the problem of litigation involved in the confusion of administrative level supervision behavior.In this paper,through sorting out the relevant administrative cases judged by the interpretation of the Supreme People's Court on Application of the Administrative Litigation Law of the People's Republic of China,combing the court's trial ideas,examining the court's determination logic,exploring the specific types,elements,standards and other issues of the administrative level supervision behavior,and supervising the administrative level Supervise the whole behavior.Through the empirical investigation of related cases,this paper summarizes five types of administrative level supervision behaviors with the highest frequency of litigation: investigating and punishing(confirming)illegal behaviors,ordering(urging)the performance of responsibilities,administrative punishment behaviors,administrative approval behaviors and normative document review behaviors.When determining the above five types of administrative level supervision behaviors,the court first determines that the law is to analyze the source of administrative subject qualifications and responsibilities,and then to consider whether the administrative level supervision behaviors triggered by appeals and reports will affect the rights and obligations of citizens.Therefore,the four elements of judicial identification of administrative level supervision are separated: administrative subject element,legal norm element,citizen participation element and interest relationship element.The four elements interact and depend on each other,so as to realize the efficient and accurate identification of administrative level supervision."Norms are not equal to practice" in every administrative level supervision case,the complex actual situation often leads to the alienation of some constituent elements,which affects the determination.Whether the behavior involved in disputes can be classified as administrative level supervision behavior largely depends on the accurate judicial determination process of the court.Therefore,it is necessary to improve the judicial identification process of administrative level supervision from two aspects of specific types and elements.By strictly limiting the connotation and extension of administrative level supervision behavior,this paper establishes the rules for dealing with the type of behavior,in order to improve the defects of current judicial identification and provide reference for judicial practice.