Research On Administrative Reward Litigation

As a typical non-mandatory administrative action,administrative award is developed on the basis of the transformation of government functions and law enforcement concepts,and has been widely used in various administrative management fields in China.However,the administrative award litigation is still a type of lawsuit that is not common.Although there are practical cases,it still suffers from the problem of a small number of cases.With regard to actionable disputes,them can be proved through three aspects:institutional basis,theoretical significance and practice.At present,the content of the dispute has gradually been transformed into compellability dispute of the internal administrative awards and discretionary administrative awards,etc..These theoretical disputes also affect the development of litigation practice.From a practical point of view,there is a clear legal basis for the internal administrative awards to be indictable.The practice of administrative award litigation in China is the practice of external administrative award litigation;but the administrative awards are mostly administrative discretionary acts,and the compellability of discretionary administrative awards is undoubtedly of great significance.While discussing these theoretical controversies,we need to pay more attention to the practice of administrative incentive litigation,which is precisely the lack of improvement in the current administrative incentive litigation system.The referee's paper network and Peking University's Fabao website have published about 300 administrative judgment instruments,totaling about 200 cases,which are the main samples for us to analyze the practice of administrative award litigation.By counting the number of these cases,the type of cases,the situation of losing the case,etc.,we can find that in addition to the problem of the small number of cases in the administrative incentive litigation,there are still improper legal characterization,considered to be administrative discretion,and the plaintiff's absence.The cases that caused hot debates such as "Ma Suiyi case","Ren Leliang case" and "South China Tiger Incident" were caused by these administrative award litigation problems.The existence of these practical problems hindered the realization of the purpose of administrative award litigation and also affected To the realization of the purpose of administrative awards.Judging from the reasons for the judgments in these cases,the reasons for the administrative award litigation are various,including the reason for the imperfect administrative award system,the reason for the administrative litigation system itself,and the important cause of the subjective consciousness.Under this circumstance,reorganizing the legal relationship of administrative award litigation and analyzing problems from the point of view of the legal relationship of litigation is helpful to combine theory and practice to understand and solve the problem of administrative reward litigation.The administrative award litigation has subjects of the court,the plaintiff and the defendant.It is the operator of our administrative award litigation system.Stimulating the subject consciousness and cultivating the litigation environment will help the comprehensive solution of the administrative award litigation problems.In addition to the administrative awards for specific administrative actions,the administrative award litigation object also includes the normative documents of administrative awards as abstract administrative acts.The latter's judicial review reduces the occurrence of similar disputes from the root cause.However,in view of the practical problems existing in China,it is more operable and realistic to construct an administrative award litigation system.In particular,the administrative incentives are explicitly included in the scope of administrative litigation.All in all,administrative incentive litigation needs to absorb the existing"nutrition" of administrative litigation theory and administrative litigation practice,and thus grow into a mature type of administrative litigation.