Identification Of Repeated Prosecutions In Administrative Proceedings

Article 106 of China's "Judicial Interpretation of Administrative Procedural Law(2018)" stipulates the three essential elements of repetitive prosecution in administrative litigation,that is,the litigation request of the same parties,the same subject matter or the same litigation request,and the subsequent litigation request are included in the pre-litigation ruling.However,the concepts of "same parties","subject matter of litigation" and "request for litigation" are vague connotations and have become a stumbling block in identifying "duplicate prosecutions" in judicial practice.In addition,by combing the judicial decisions,we can find that there is no uniform standard for the determination of repeated prosecutions,and even judicial judgments with different circumstances appear.Neither the determination of "the parties are the same",the determination of "the subject matter of the lawsuit or the request for the same action",nor the determination that "the request for a subsequent action is included in the prior action" does not have a unified ruling.In addition,the repeated cases of prosecution in judicial practice include not only the three cases stipulated in the law,but also the cases of re-prosecution after withdrawal,separate prosecution of multi-stage administrative actions,and repeated cases of two relief systems.The law does not identify The standards and judicial practices are also more chaotic.The following factors should be considered to identify repeated prosecutions in administrative litigation: the purpose of administrative litigation,the protection of litigants' rights of litigation,and the rational allocation of judicial resources.The same parties are divided into "same plaintiff" and "same defendant".To identify the same plaintiffs,it is necessary not only to distinguish whether there is a legal interestbetween different plaintiffs,but also to determine whether the plaintiffs are the same with the "same subject of litigation" standard.To identify the same defendants,we must first determine whether the defendants are eligible.On the premise of determining that the defendants are eligible,supplemented with the "subject matter" standard to determine whether the defendants are the same.The traditional "subject matter" theory holds that the subject matter of administrative litigation is administrative action,but this theory is not applicable to all types of litigation.Therefore,when judging whether the "subjects of litigation" are the same,the premise is to distinguish different types of litigation with different litigation targets.The "claim" is a specific statement of "subject matter",and the two cannot be conflated.In some types of litigation,the "request" element also plays an irreplaceable identification role.It can be said that the introduction of a typed system of administrative litigation,while giving play to the judge's obligation to explain,is conducive to the identification of repeated prosecutions.The subsequent litigation request is a judgment contained in the result of the pre-litigation judgment that can be converted to the suitability of part of the litigation request.It should be based on the premise of clearing the plaintiff's obligation to explain,having a valid reason,and limiting the number of times of partial litigation request Next,determine whether it is a repeated prosecution.In addition,in other types of repeated prosecutions,the parties should be allowed to re-sue after the withdrawal of the prosecution or according to the withdrawal of the prosecution,but the number of re-sues by the parties should be limited,otherwise,the re-sue should be repeated.The judgment of separate prosecution of multi stage administrative actions should be viewed from a dialectical perspective,to determine whether the interests of the lawsuit are present and whether it is a repeated lawsuit.In addition,multi-channel litigation is one of the cases of repeated prosecutions,and it is also a manifestation of abuse of the right to sue.Judgment of repeated prosecutions in such cases is converted to the determination of "abuse of the right to sue."...