Study On Judicial Application Of Remedial Judgment In Administrative Litigation

When the Administrative Procedure Law was revised in 2014,the remedial judgment system was formally established in the legislation.According to relevant legislative background information,the legislative intention is to confirm the substantive significance of the judgment,eliminate disputes and mitigate contradictions through remedial judgments.Verdict is expected the function of many remedy,however,the rules are very simple,namely "illegal or invalid,the people’s court for a ruling can be ordered at the same time the defendant to take remedial measures",the related judicial interpretation is also not "ordered the defendant to take remedial measures for further explanation,it left the judicial practice great discretion space.The author makes statistics on the remedial judgment in judicial judgment,and finds that the understanding of the remedial judgment is not uniform in practice: in the scope of application of cases,the remedial judgment improperly erodes the application space of other judgments;In terms of the applicable conditions,different courts have different understandings on whether they should make a remedial judgment according to the authority or the lawsuit request.In terms of the time limit for performance,the court sometimes limits it,sometimes does not;In the specific measures of remedial judgment,procedural remedial judgment without substantive content occupies a higher proportion.Therefore,it is necessary to conduct a thorough study on the judicial application of the remedial judgment and clarify the application path.Combined with relevant legislative background materials,the author makes an in-depth study of the system evolution of remedial judgment,analyzes the expectation of judicial interpretation makers and legislators on the function and applicable scale of remedial judgment in each period,and on this basis,summarizes the functional forms of remedial judgment in judicial practice into three categories: One is to remedy the legality of administrative acts so as to eliminate the continuous infringement of administrative acts against objective legal order.The second is to remove the state of disinterest caused by the sued administrative act so as to restore the plaintiff’s damaged legal rights and interests to their original state.The third is to resolve administrative disputes and make up for the incomplete settlement of disputes over confirmed judgments.The author constructs the judicial application of the remedy judgment by centering on the triple functions of the remedy judgment.In terms of the applicable conditions,first of all,the triple functions of the remedy judgment determine that it should be applied by the court according to its authority,rather than relying on the plaintiff’s claim.Secondly,when the court decides whether to make a remedial judgment according to its authority,it should consider whether the triple functions of the remedial judgment are needed in a specific case.In terms of the content of the judgment,the duration of the remedy should be clarified in all the judgment so as to ensure the play of the judgment function.For remedial measures,and to distinguish between case discussion: objective legal order to remedial decision play a maintenance function,the subjective rights protection function,because does not involve the problem of administrative discretion,the court clearly remedial measures in fact is the administrative organ must be performed by the measures,its legitimacy,no doubt;When remedial function that play to resolve administrative dispute,because involves the administrative organ at the discretion of the problem,the court should give a certain degree of respect,want to consider using the acceptability of remedial measures,both sides involved in the court to judge the professional field,can entrust a third party professional institutions to assist the court in order to determine the specific remedies.