| In the current practice of administrative rule of law in our country,the typical appearance of the disposition of the right of action in administrative litigation is mainly manifested as giving up the right of action after reaching an agreement of Not-to-sue before prosecution and withdrawing the lawsuit after reaching an agreement of Not-to-sue after prosecution.The right of action in administrative litigation is not only a personal matter of citizens,but also closely related to the operation of administrative power and judicial power.As for the judicial review on disposition of the right of action in administrative litigation,there are deficiencies in the current legislation and indifference in theoretical research,which to a certain extent leads to the prominence of the judicial practice’s failure to exercise the review power and the inconformity of review standards.Through the investigation and carding of empirical cases,to find,analyze and summarize the shortcomings and experience of practice,and to look for methods of improving at the theoretical and institutional fields,which is not only of practical sense in directing the trial,but also to optimize legislation and the theoretical research.This essay concentrates on the research of the above questions,which is divided into four parts:In the first part.as the raising of the question,this paper will take the agreement of Not-to-sue,which is the typical appearance of the disposition of the right of action in administrative litigation,as an example to examine how the courts review the agreement.Through the analysis and investigation of the empirical evidence and the case,we can find that the court has the same conclusion,but the reason or way of the judgment is different,and even the position is diametrically opposed.The root cause lies in the fact that the judicial practice has failed to reach a consensus on whether the right of action can be disposed in administrative litigation,the boundary of the disposition and the standard of judicial review.In this regard,there are not only legislative deficiencies,but also academic differences.The second part aims to demonstrate the permissibility and the limited application on the disposition of the right of action in administrative litigation,both as a response to the question of whether the right of action in administrative litigation can be disposed and the boundary of the disposition put forward in the first part,and it also lays a good foundation and groundwork for the solution of the judicial review of the disposition of the right of action.In terms of disposability,this paper intends to demonstrate from three angles:the right attribute of the right of action,the nature of the right of action in administrative litigation and the diversified settlement of administrative disputes;as far as the limitation of application is concerned,this paper will discuss why and how should we limit the disposition of the right of action in administrative litigation.The third part discusses the judicial review approach of reaching an agreement of Not-to-sue before prosecution.After a series of arguments,this paper holds that the agreement of Not-to-sue does not have the effect of procedural interruption,and whether it can become a substantive defense depends on the effectiveness of the agreement itself and its actual performance.In the current trial practice,there is a problem that the ruling of dismissing prosecution is misused.The court should follow the judicial review approach of the dichotomy of restrictive administration and discretionary administration.In the case that there is no legal reason for dismissing the lawsuit,and the legal and effective agreement has been performed by the administrative organ,the judge should reject the claim rather than rule to dismiss the suit.The fourth part analyzes the problems existing in the judicial review of the agreement reached after prosecution.If citizens and administrative organs reach an agreement of Not-to-sue after prosecution,the usual way to dispose of the right of action is to withdraw the lawsuit.On the provisions of the current Administrative Litigation Law on the review of the application for withdrawal and the lawsuit may not be prosecuted again with the same facts and reasons after withdrawal,not only are there disputes in theory,but the phenomenon of the court’s false review power in practice is prominent.In view of these theoretical disputes and practical problems,this part demonstrates the legitimacy and specific content of the substantive review of the withdrawal application,and examines the provisions of the current legislation on restricting re-prosecution after withdrawal and puts forward suggestions for improvement. |
