The Obstacles To The Construction Of The Preventive Administrative Litigation System In Our Country And Their Solutions

Since Professor Hu Xiaohua published "on Preventive Administrative Litigation" in 1999,the academic research on preventive administrative litigation has lasted for more than 20 years.However,there are still some problems,such as inconsistent understanding of the concept of preventive administrative litigation,too much repeated discussion and low attention to why it is difficult to establish the preventive administrative litigation system.In addition,from the standpoint that preventive administrative litigation is to prevent the making of administrative acts,the so-called anti-information public litigation can not be regarded as the embryonic form of preventive administrative litigation system.There are two views on the concept of preventive administrative litigation in academic circles.The first is the theory of actual damage prevention,and the second is the theory of prevention of damage behavior.Based on the analysis and comparison of the two viewpoints and the comparison between the preventive administrative litigation system and the related systems,this paper holds that the most important characteristics of preventive administrative litigation are its prevention,complementarity and litigation from the beginning.Therefore,from the point of view of the theory of prevention of damage behavior,it should be considered that preventive administrative litigation is to prevent the legitimate rights and interests of the relative person from getting fair relief in the ex post facto relief,so as to allow the relative person to bring it when the legal conditions are met.An action in which a court is requested to rule that an administrative organ may not commit an administrative act or factual act from the outset.Although the academic research on preventive administrative litigation has been going on for many years,it can not be promoted in the theoretical depth,and at the same time,it has not promoted the establishment of the system in practice.Therefore,we should pay more attention to the obstacles that will be encountered in the construction of preventive administrative litigation system in our country and find the corresponding solutions.As far as the theoretical obstacles are concerned,the first is whether the counterpart has the right to sue in advance.The reasons for opposing the establishment of this right of action for the counterpart are mainly based on the theory of legal right of action,the theory of right of action from the perspective of law and economics,and the theory of balance of interests in the right of action.The immediate question is whether the decision of the court prohibiting the administrative organ from making an administrative act unduly violates the executive power.The related theory is the theory of the administrative organ's first judgment power and the mature principle.Finally,there are some practical problems,such as the existing legal system is difficult to accommodate the preventive administrative litigation system,even if it is established,the preventive administrative litigation system is facing the possibility of formalization.In order to solve the problem of the relative person's right of action,because the legal theory of the right of action itself does not criticize the value of preventive administrative litigation,it can only be solved by the method of law interpretation or changing the enactment of law.The common view that litigation resources are limited is worth reflecting on,and the perspective of law and economics can not provide a more important argument on which state affairs;As the theoretical basis of the theory of interest measurement in the right of action,the balance theory itself also has some problems,such as the lack of profound demonstration of the value basis and so on.The first judgment power of the administrative organ and the mature principle have been constantly alleviated since they were put forward.in the world,the role of the two is to limit the preventive administrative litigation system rather than hinder its establishment.For the practical problems,we can introduce the preventive administrative litigation system by establishing a special law in addition to the administrative procedure law,and finally complete the type reform of administrative litigation in our country in the form of first division and then combination.In addition,the preventive administrative litigation system itself also needs to be constantly improved.therefore,we should constantly reflect on the problems existing in the system in judicial practice after taking the first step to establish the system.