Two, learn from foreign experience, enrich the form of administrative judgments of Chinese courts.
Three, clear burden of proof sharing, improve the burden of proof system.
1The Administrative Procedure Law of the People's Republic of China promulgated on April 4, 989 has played an important role in promoting the administration of administrative organs according to law, protecting the legitimate rights and interests of administrative counterparts and safeguarding human rights. The Supreme People's Court's "Implementation Opinions" and "Explanations on Several Issues" have further improved this. The author believes that the right to appeal should be protected according to law and the system of participants in administrative litigation should be improved; Draw lessons from foreign experience, enrich the forms of court administrative judgments in China; Clearly share the burden of proof and improve the burden of proof system.
1On April 4, 989, the Second Session of the Seventh National People's Congress passed the Administrative Procedure Law of the People's Republic of China (hereinafter referred to as the Administrative Procedure Law), giving administrative organs and their staff the right to bring a lawsuit if they infringe upon the legitimate rights and interests of citizens, legal persons or other organizations in the exercise of their functions and powers. This has played an important role in protecting the legitimate rights and interests of the administrative counterpart and safeguarding human rights. However, with the development of trial practice, the existing laws are increasingly unsuitable for the needs of trial work. At present, China's administrative litigation system is actually facing the problem of how to absorb the positive factors in the modern litigation system and creatively improve it according to the requirements of the development of socialist market economy. [1] 199 1 the Supreme People's Court's Opinions on Several Issues Concerning the Implementation of the Administrative Procedure Law of the People's Republic of China (hereinafter referred to as the Implementation Opinions) and the Supreme People's Court's Interpretation on Several Issues Concerning the Implementation of the Administrative Procedure Law of the People's Republic of China on March 8, 2000,
First, protect the right to appeal according to law and improve the system of participants in administrative litigation.
1, reasonably define the plaintiff qualification.
According to the principle of non-prosecution, the people's court can't initiate an administrative lawsuit and start a lawsuit without the plaintiff's prosecution. Therefore, reasonably determining the plaintiff's qualification can not only protect the legitimate rights and interests of the administrative counterpart according to law, but also prevent excessive litigation. Article 24 of the Administrative Procedure Law stipulates that a citizen, legal person or other organization that files a lawsuit in accordance with the Administrative Procedure Law is the plaintiff, and if a citizen who has the right to file a lawsuit dies, his close relatives may file a lawsuit. Article 4 1 stipulates that the plaintiff is a citizen, legal person or other organization that believes that a specific administrative act infringes upon his lawful rights and interests. For the determination of the plaintiff's qualification, the administrative procedure law only has these two principles, which is far from meeting the needs of judicial trial in practice. First, the scope of close relatives is unknown, which leads to the fragmented application of legal provisions by local courts, which is not conducive to the unification of the legal system. It also provides an excuse for some courts not to accept the prosecution of close relatives of the parties. Second, there is no provision for the plaintiff qualification of rural land contract operators. As a system to stimulate farmers' enthusiasm, the rural household contract responsibility system has been enshrined in the Constitution, but in practice, it is difficult to protect the legitimate rights and interests of rural land contractors. Third, the 15th National Congress of the Communist Party of China has determined that China's economic system is dominated by public ownership and multiple ownership economies coexist. However, the Administrative Procedure Law does not stipulate the remedies when the legitimate rights and interests of various enterprises are infringed by administrative actions of administrative organs. Fourth, the legitimate rights and interests of the third party can not be protected, because if the counterpart of a specific administrative act does not file a lawsuit, there will be no interested parties to the specific administrative act. This article will be compiled and provided by www.5 1lunwen.com as a third party to participate in the lawsuit. " [2] In view of the above defects of the Administrative Procedure Law, the Interpretation of Several Issues has made perfect provisions. First, clearly define the scope of close relatives, and further stipulate that citizens cannot bring a lawsuit because of restrictions on personal freedom. Their close relatives may, on the basis of their oral or written entrustment, bring a lawsuit in the name of the citizen. This not only protects the legitimate rights and interests of the administrative counterpart, but also conforms to the relevant provisions of the General Principles of Civil Law and the Civil Procedure Law. The second is to expand the scope of plaintiffs, and stipulate that citizens, legal persons or other organizations that have legal interests in specific administrative acts can bring administrative proceedings according to law if they are dissatisfied with the acts. This is of great significance to correct the misunderstanding in the trial: the plaintiff must be the administrative object of the administrative organ. Third, it is stipulated that rural land contractors and other land users who are dissatisfied with the administrative organs' actions to dispose of the rural collectively owned land they use may file a lawsuit in their own name, and may not file a lawsuit in the name of the villagers' group. Of course, the rural land use right here includes both township enterprises that use rural land and villagers who build houses on rural land. Fourth, it is clearly stipulated that different enterprises have different litigation rights. The parties to a joint venture, a Sino-foreign joint venture or a contractual joint venture believe that a specific administrative act has infringed upon the rights and interests of the joint venture, joint venture or contractual joint venture or their own legitimate rights and interests, and may bring a lawsuit in their own names. If the shareholders' meeting, the shareholders' congress and the board of directors of a joint-stock enterprise think that a specific administrative act made by an administrative organ infringes on the autonomy of the enterprise, they may bring a lawsuit in the name of the enterprise. In view of the fact that the legitimate rights and interests of non-state-owned enterprises are sometimes infringed during the transformation of enterprises in economic transition, the Interpretation of Several Issues also stipulates that if a non-state-owned enterprise is cancelled, revoked, merged, forced to merge, sold, divided or changed by an administrative organ, the enterprise or its legal representative may bring a lawsuit.
2. Supplementary provisions on the system of third party and agent in administrative litigation.
The third party in administrative litigation refers to a citizen, legal person or other organization that has an interest in the specific administrative act being sued and has participated in the proceedings upon application or notice from the court. [3] The third party in administrative litigation is different from the third party in civil litigation, and there is no distinction between the third party with independent claim and the third party without independent claim. Although the Administrative Procedure Law affirms the existence of the third party in administrative litigation, there is no further provision. [4] The "Implementation Opinions" has made supplementary provisions on this, but it can't meet the needs of judicial practice, because it restricts interested parties from participating in litigation as the third party of administrative punishment. The interpretation of several issues cancels the above provisions, making it clear that as long as the same specific administrative act of an administrative organ involves more than two interested parties, and some of them refuse to accept the specific administrative act and bring an administrative lawsuit to the court, the court shall notify the other interested parties who have not brought the lawsuit to participate in the lawsuit as a third party. In addition, in judicial practice, there may be two or more administrative organs that have made specific administrative acts, and the plaintiff only sues one of them, and the other administrative organs do not participate in the proceedings, which is not enough to protect their legitimate rights and interests. In this case, the administrative procedure law does not stipulate the identity of administrative organs to participate in litigation. Interpretation of Several Issues stipulates that the defendant shall be added. If the plaintiff does not agree to the addition, the people's court shall notify him to participate in the proceedings as a third party. An administrative litigation agent refers to a person who, according to the law, is appointed by the court or entrusted by the parties, conducts litigation activities for the parties in his own name within the scope of agency authority, but the legal consequences of litigation are borne by the parties. [5] Administrative litigation agents can be divided into legal litigation agents and entrusted litigation agents. The establishment of the administrative litigation agency system is to use the knowledge of the agent to serve themselves when the parties are unable or unwilling to participate in the litigation for various reasons, so as to achieve the purpose of safeguarding their legitimate rights and interests. Both the Administrative Procedure Law and the Implementation Opinions have stipulated this system, and the Interpretation of Several Issues has made new provisions in order to fully protect the legitimate rights and interests of the parties. On the one hand, when the parties are unable to entrust an agent ad litem in writing under special circumstances, they can entrust it orally; On the other hand, if the defendant's organ or detention center and other organs with the obligation to assist refuse the oral entrustment of the people's court to verify the citizens whose personal freedom is restricted, it is regarded as the entrustment.
Two, learn from foreign experience, enrich the form of administrative judgments of Chinese courts.
The Administrative Procedure Law stipulates that after hearing an administrative case, the people's court can make four forms: upholding the judgment, revoking the judgment, fulfilling the judgment and changing the judgment. However, with the development of administrative litigation, some cases that cannot be solved by the above judgments have appeared in practice, and scholars and practitioners suggest increasing the types of judgments. [4] The Interpretation of Several Issues has improved the form of administrative judgments as follows:
1, which stipulates that the people's court may make a confirmation judgment.
Confirming judgment refers to the judgment that the court confirms whether there is some administrative legal relationship between the counterpart and the administrative organ through the examination of specific administrative acts. [4] Reasons for increasing the confirmation of judgments: First, the separation of powers is the basis of political and legal systems in western countries. They emphasize the restriction of power by power and the division of labor and checks and balances among legislative, administrative and judicial powers. [6] In the United States and Germany, the court has the right to make a confirmation judgment. "Stones from other mountains can attack my simple jade", keeping up with the trend of the times and connecting with the international community is the organizational system.
Confirm the age basis of judgment. Second, in judicial practice, it is not appropriate for the court to make any judgment on a class of cases in which the administrative counterpart sues the administrative organ for failing to protect personal rights and property rights. The need of judicial practice is the practical basis for establishing a confirmed judgment. Thirdly, in academic circles, some scholars pointed out that there is no legal obstacle to the establishment of the form of confirmation judgment, and the existing laws have implied the nature of confirmation judgment. [7] Because before the court makes a judgment, it is necessary to identify the legality of a specific administrative act. Confirmation is the premise of judgment, and judgment is the result of confirmation. The two are inseparable. [4] The need of legislation is to establish the legal basis for confirming the judgment. Therefore, the Interpretation of Several Issues stipulates that if the people's court considers that the specific administrative act being sued is legal, but it is not appropriate to make a judgment to maintain or reject the claim, it may make a judgment to confirm its legality or validity. If the specific administrative act being sued is illegal, but it does not have revocable content, the people's court shall make a judgment to confirm that the specific administrative act being sued is illegal or invalid.
2. Increase the judgment of rejecting the claim.
In judicial practice, it is sometimes inappropriate to make a positive or negative judgment on the legality of specific administrative acts, and the court should not and cannot make a comprehensive review of some specific administrative acts. However, this paper on administrative litigation was compiled and provided by www.5 1lunwen.com, but it started because of the prosecution of the administrative counterpart. At this time, it is necessary to make a judgment on the litigant's claim. Interpretation of Several Issues stipulates that if the reasons for suing the defendant for inaction cannot be established, if the specific administrative act is legal but there are rationality problems, if the specific administrative act is legal, but needs to be changed or abolished due to changes in laws and policies, and so on, the people's court shall reject the plaintiff's claim.
Three, clear burden of proof sharing, improve the burden of proof system.
The evidence system is compared to the backbone of the administrative litigation system in the theoretical circle. "The burden of proof is the core of the evidence system, and the sharing of the burden of proof is the core of the burden of proof". [8] Article 32 of the Administrative Procedure Law stipulates that the defendant bears the burden of proof for a specific administrative act and shall provide evidence and normative documents on which the specific administrative act is based. It not only clarifies that the defendant bears the burden of proof, but also stipulates the scope of the burden of proof. This provision is very necessary for the defendant, which is conducive to the defendant's clear goal of the burden of proof, and neither omits the facts that must be ascertained in the case, nor entangles with unimportant or trivial facts, so as to concentrate on proving the true situation of the case accurately and timely. [1] This provision is also in line with the purpose of establishing administrative litigation. The purpose of administrative litigation is to urge administrative organs to administer according to law and protect the legitimate rights and interests of administrative counterparts. When an administrative organ makes a specific administrative act, it must follow the rule of obtaining evidence before making a ruling. Paragraph 2 of Article 34 of the Administrative Procedure Law stipulates that the people's courts have the right to obtain evidence from relevant administrative organs, other organizations and citizens. This provision is also in line with China's national conditions and reflects the superiority of the socialist system. In judicial practice, the parties, especially the plaintiff, cannot collect evidence for various subjective and objective reasons. If the parties are judged to undertake litigation, it will not only be detrimental to the protection of the legitimate rights and interests of the parties, but also insult the judicial power entrusted by the people. The Administrative Procedure Law reasonably determines the burden of proof, but there are also some defects. First, the plaintiff is not required to bear the burden of proof. Article 2 of the Administrative Procedure Law stipulates that citizens, legal persons or other organizations have the right to bring a lawsuit to the people's court in accordance with this Law if they think that a specific administrative act of an administrative organ or its staff infringes upon their legitimate rights and interests, and they "think" that there is a basis or reason in themselves, or that there must be a basis or reason. How to sue without reason or basis? "Without investigation, there is no right to speak." If there is no basis, you can't make statements or actions at will. As long as an administrative lawsuit is filed, there is a burden of proof. [9] Article 32 of the Administrative Procedure Law is not a denial of the plaintiff's burden of proof. Second, in China, in view of the imperfect legal norms of administrative procedures and the low level of administrative management, the principle of absolute case files is not adopted. [2] The people's court is allowed to ask the parties to provide or supplement evidence according to the situation, but the Administrative Procedure Law does not limit the defendant's right to supplement evidence. In judicial practice, some courts allow the defendant to supplement evidence without restriction, and some may be after the administrative organ has made a specific administrative act, which is contrary to the purpose of the Administrative Procedure Law. Third, the so-called "truth will become fallacy if one step forward", the people's court has the right to investigate and collect evidence under certain circumstances, but this right should be restricted to prevent abuse. However, there is no restriction in the Administrative Procedure Law. In order to improve the burden of proof system, supplementary provisions have been made in the implementation opinions, and further provisions have been made in the Interpretation of Several Issues. First, the burden of proof is clearly borne by the plaintiff, and the scope of proof is stipulated, such as proving that the prosecution meets the statutory conditions, proving the facts applied by the defendant in the case of prosecuting the defendant's inaction, and proving the facts that the accused behavior caused losses in the administrative compensation lawsuit filed together. Second, it restricts the defendant's right to supplement evidence and stipulates that the people's court can only allow the defendant to supplement relevant evidence in two cases. One is that the defendant has collected evidence when he made a specific administrative act, but he can't provide it for justified reasons such as force majeure; In another case, the plaintiff or the third party put forward rebuttal reasons or evidence that the defendant did not put forward in the process of administrative action during the litigation. Third, the plaintiff or the third party and its agent ad litem are required to provide evidence clues, and the people's court can only collect evidence ex officio, but can't collect it by itself and apply to the people's court for collection. If the parties should provide the original or the original, the people's court can only collect evidence ex officio. In other cases, the burden of proof is borne by the parties, and the judge will judge impartially.