| The judgment of alteration of administrative litigation is a form of judgment by which the people’s court directly changes the administrative penalty in the form of judgment if the administrative penalty is obviously improper or the determination and determination of the amount of any other administrative act is indeed wrong.Compared with other forms of judgment in administrative litigation,the change judgment has unique advantages.Its core is the right of judicial change,which can solve administrative disputes quickly and effectively while implementing the economic principle of litigation,and force administrative organs to make the correct decision of administrative punishment when making administrative actions again by changing administrative acts.Limiting the discretionary space of administrative power in the track of rational justice forms the mechanism of maximizing or minimizing the protection of administrative relative person’s rights.From the historical evolution of the modified judgment,it has aroused wide attention of scholars and judicial staff before and after the enactment and amendment of the Administrative Litigation Law,because it straddles the two domains of administrative power and judicial power,which may lead to the situation that one party overtakes the other party.Legislation at the beginning of the debate is whether a people’s court shall have legal right to change,the change behind the ruling principle is that the court must respect for the premier decision of administrative organs,administrative organs shall not interfere in the court trial process and results,also changes the original administrative action in court to make a New Deal with the results,if the administrative organ must also abide by common consent.After the revision of the Administrative Procedure Law in2014,the application of the modified judgment is no longer limited to the obvious improper administrative punishment,and the monetary payment error and the principle of prohibiting adverse change and its restrictions have also been included in the scope of judicial review and change through explicit provisions.However,the result of administrative trial practice is far from the legislator’s expectation,and the expected effect has not been achieved.Through the analysis of the current situation of the application of altered judgment in administrative litigation,it is found that the number of courts using altered judgment has not been greatly increased with the revision of the administrative procedure law,and the changed judgment has been basically shelved.There are some problems in the system of changing judgment of administrative litigation in China,such as low application rate,many influencing factors when the court makes a changing judgment,insufficient reasoning when the court makes or does not make a changing judgment,and frequent circular litigation.After sorting and exploring,the reasons for the above problems in the change of judgment of administrative litigation in China mainly revolve around the following aspects: Due to the narrow scope of application,the influence of judicial localization,the uneven identification of "obvious impropriety" by the judges of the court and the difficulty in achieving the legal effect of settling and ending disputes by the current provisions on the alteration of judgment,the alteration of judgment in administrative litigation can not give full play to its unique advantages.Based on the reference of the relevant provisions of the civil law system and common law system and the suggestions of the majority of scholars,this paper puts forward the corresponding measures to improve the judgment.By appropriately expanding the scope of application of the modified judgment,the cases with civil dispute factors and the theory of administrative discretion shrinking to zero can be included in the modified judgment,so as to strengthen the selectivity of the application of the modified judgment.Eliminate "judicial localization" to ensure that the people’s court can avoid the interference of other factors to the maximum extent when making the judgment change;By further standardizing the apparent inappropriateness of administrative penalties so that the courts can fully rationalize the decisions made or not made to change them;The use of litigation mediation system to resolve the problem of circular litigation,to promote the intersecting of the case can be unified settlement,give full play to the unique value of changing the judgment,and effectively achieve the legal effect of settling disputes.This is also an important measure to change the current situation and ensure law-based administration and judicial justice. |
