Research On The Identification Standards For Repeated Prosecution In Administrative Litigation

In 2018,China promulgated and implemented the "Interpretation of the Supreme People’s Court on the Application of the Administrative Procedure Law of the People ’s Republic of China "(hereinafter referred to as the " Interpretation of the Administrative Procedure Law ")for the first time formally stipulated the standard time for repeated prosecution in administrative litigation.Article 106 of the interpretation stipulates that the identification of duplicate litigation in administrative litigation shall be based on the elements of litigation,and the three identical identification standards shall be applied,with the parties,litigation objects,and litigation requests as the identification elements of duplicate litigation.The provisions of Article 106 of the Interpretation of the Administrative Procedure Law on the identification criteria for repeated prosecutions in administrative litigation respond to the actual needs of identifying and regulating repeated prosecutions and provide a corresponding legal basis.However,based on the current situation of judicial application,it can be found that the identification standard is too principled in content,resulting in unclear connotations and extensions of the parties,litigation objects,and litigation requests.There are also conceptual misconceptions in logic,which lead to inconsistent recognition of duplicate prosecution in administrative litigation in judicial practice.It is necessary to further clarify and refine the criteria for determining duplicate prosecution in administrative litigation.In the same identification of the parties,the parties should include not only the formal parties,but also the substantive parties such as the litigant,the general third party within the scope of res judicata,the successor of the parties,and the person who occupies the subject matter of the litigation for the interests of the parties or their successors.In the same identification of the subject matter of litigation,the subject matter of litigation should refer to the illegality of administrative acts,and mainly refers to individual illegality rather than general illegality.The theory of individual illegality is the choice that is most in line with China’s current legal norms and judicial practice.In the identification of the same or contained claims,the same claims of the two lawsuits before and after include both the same in form and the same in substance.The inclusion of the latter claim by the former claim mainly refers to the inclusion of the number of the two lawsuits that occurred when the two lawsuits were both the litigation of payment,and the inclusion of the type of litigation that mainly occurred when the confirmation lawsuit,the revocation lawsuit and the payment lawsuit overlapped.In terms of scope,the scope of the claim is generally limited to the main text of the judgment,but it can also conditionally give the main issue res judicata.In addition to the further refinement of the content of the identification standard of repeated prosecution in administrative litigation,the application of the identification standard is not uniform,and the concept of litigation affiliation should be introduced in theory,which is a necessary prerequisite for understanding the legal basis of repeated prosecution in administrative litigation and improving the identification standard of repeated prosecution.In addition,the identification order of each element in the identification standard should be determined to improve the operability and effectiveness of the identification standard.For the confusion of the concept of repeated prosecution,the "repeated prosecution" in Article 69(6)of the "interpretation of the law of action" can be changed to "already existing litigation"so that the effectiveness of litigation and res judicata can be clearly distinguished,and the conceptual conflict in judicial interpretation can be eliminated,so as to solve the problem of law application.