Research On The Application Of Compulsory Measures In Administrative Litigation In My Country

The progress of administrative litigation depends on the guarantee of compulsory measures of administrative litigation.Only when the compulsory measures of administrative litigation play the role of maintaining order can the administrative litigation process be promoted and the judicial authority be guaranteed.But in practice,the application of compulsory measures in administrative litigation is unsatisfied.From the macro level,the application of compulsory measures in administrative litigation shows the characteristics of biased objects and low application rate.From the perspective of specific cases,there are a series of problems in its application,such as vague starting procedures,unknown types of measures,different application standards,difficulties in rights relief and so on.For example,the court has different responses to the parties' request to take compulsory measures in administrative litigation;there are measures which are not stipulated by the Administrative Procedure Law in the litigation practice;the phenomenon of different sentences in the same case is serious;the reconsideration system is formalized and virtual.Analyzed at a deep level,,the chaos in application is mainly influenced by the concept,legislation and supporting system.First of all,in the external ideology,under the influence of "peace is precious","afraid of trouble","big administration and small judiciary" and "official standard",judges are reluctant to use compulsory measures of administrative litigation,but the administrative organs are easy to carry out obstruction in litigation.From the perspective of internal concept,there is deviation in the concept and orientation of compulsory measures in administrative litigation.The compulsory measures in the three major litigation are the same from the source of power and the purpose of establishment,but the specific procedural design and characteristics of the compulsory measures in administrative litigation should be different due to the particularity of the administrative procedure law.In the design of the system of compulsory measures in administrative litigation,we should consider the balance of taking care of the weak,controlling the administrative subject and the equal application.Secondly,the legislation of compulsory measures in administrative litigation is not perfect,the relevant provisions are scattered,unsystematic,and shallow.On the other hand,the legislation is not clear,which leads to the ambiguity and the existence of various walks of life in practice;on the other hand,the legislation lags behind,which leads to the application of the actual demand.Finally,the problems in the application and the poor effect are also related to the imperfect supporting measures.These imperfections are mainly reflected in the low professional quality of judges,the disunity of judicial financial management,the non-standard management of documents of compulsory measures in administrative litigation,the lack of disclosure of nuisance cases,the difficulty of inquiry and the lack of supervision from other organs.After analyzing the causes of the chaos,we should start from the ideological level,the system itself level and the relevant supporting system level to change the chaos.First of all,good concept and soil of rule of law are the ideological basis of improving the chaos of the application of compulsory measures in administrative litigation.In the design of the internal concept of administrative litigation coercive measures,we should always grasp the commonness with other litigation coercive measures and its own characteristics to clarify the position.Secondly,at the legislative level,the regulations on compulsory measures in administrative litigation should be promulgated.Select areas for pilot reform through trial regulations,and then continuously improve the applicable regulations according to the practice feedback.The introduction of special regulations can reshape the context of compulsory measures in administrative litigation and clarify the problems in application so as to standardize the practice better.In the concrete content,we should focus on grasping several aspects.The first,the principle of equal application should be highlighted in the application principle.The second,compulsory measures in administrative litigation should follow the category of legal doctrine in application.As to what kind of law should be complied with in the statutory provisions,a distinction should be made.The third,explain the nuisance by means of examples and generalizations,and take the obvious and immediate nuisance or substantial danger as the judgment standard.The fourth,introduce the discretion benchmark into the field of compulsory measures in administrative litigation,so that the application of compulsory measures in administrative litigation can form a gradient,and the responsibility is equal,so as to meet the requirements of the principle of proportionality.The fifth,start compulsory measures of administrative litigation by classification.For the compulsory measures of penalty and detention,the starting procedure is based on the combination of application and authority,while for the compulsory measures of admonishment and order to sign a statement of repentance,the court starts according to authority.The sixth,we should strengthen the right relief to the applied object.It is necessary to clarify the duty of the judge to inform,protect the right of defense and statement,and ensure the adjudication of the reconsideration process.The seventh,the specific provisions on the application of compulsory measures of administrative organs should be made clear.Finally,we should do a good job in the connection of the relevant systems of administrative litigation compulsory measures,and form force with thought and law to get out of the dilemma of the application of compulsory measures.The first is to improve the judge's quality through the post system,and bring the application of administrative litigation coercive measures into the assessment mechanism,so as to establish a professional and elite judicial team that always adheres to the concept of fairness and justice,and promote the correct application of administrative litigation coercive measures;the second is to ensure the work of judges from the financial aspect,so as to promote the real judicial independence,and the court can apply the compulsory measures of administrative litigation correctly;the third is to standardize the production and filing of the legal documents related to the compulsory measures of administrative litigation,improve the quality of the documents,and do a good job in recording,so as to ensure that there is evidence to be found;the fourth is to establish the corresponding information disclosure and inquiry system to strengthen the supervision of the society on the application,and promote the formation of a good atmosphere of litigation;the fifth is to establish a long-term communication mechanism with the superior organs of the administrative organs,the supervisory committee at the same level and the Standing Committee of the National People's Congress,and establish a national database of administrative organs' obstruction of litigation so as to curb the occurrence of administrative organs' obstruction of litigation.