The nineteenth chapter of administrative reconsideration

Learning focus problem

　　The concept and characteristics of administrative reconsideration

administrative reconsideration is refers to the citizen, legal person or other organization that the administrative organs of the specific administrative acts infringe upon their legitimate rights and interests of an administrative organ is proposed, in accordance with legal procedures and conditions to make the specific administrative act by the application, the admissibility of the application of administrative organs of the specific administrative act shall carry out a review and make a decision. It is an important form of administrative organs within the system self supervision.

Characteristics of administrative reconsideration is:

1 administrative reconsideration of administrative behavior;

2 administrative reconsideration on administrative disputes as the processing object behavior;

3 administrative reconsideration is a kind of administrative relative party filed in accordance with the application of the resulting behavior;

4 administrative reconsideration is a kind of administrative judicial practices.

　　The principle and function of the two, the administrative reconsideration

(a) the principle of administrative reconsideration

The administrative reconsideration is the principle that runs through the whole process, the administrative reconsideration of universal significance of the code of conduct for administrative reconsideration.

According to the "administrative review law", the administrative reconsideration is the principle:

1 the principle of legality;

The 2 principles of justice;

3 public principle;

4 timely principle;

5 principles of convenience.

(two) the role of administrative review

1 the protection of citizens, legal persons and other organizations of the legitimate rights and interests.

2 security administrative organs in exercising their functions and powers.

3 administrative organs exercise their functions and powers according to law.

　　Three, participants in administrative reconsideration

Participants in administrative reconsideration is refers to the administrative disputes and administrative disputes the parties and interested persons. Including the applicant for administrative reconsideration, the respondent and the third person.

The applicant for administrative reconsideration refers to that the violation of their legitimate rights and interests of specific administrative act, the citizens, legal persons or other organizations in accordance with the law on its own behalf of filing the application for reconsideration.

Review by the applicant for the specific administrative act refers to citizens, legal person or other organization for the making of filing the application for reconsideration of administrative organs.

Third refers to the specific administrative act, apply for reconsideration to the interested, citizens, legal persons or other organizations with the approval of the administrative body for reconsideration.

　　Four, the scope of administrative reconsideration

The scope of administrative reconsideration is refers to the administrative organ to accept the administrative reconsideration case scope.

According to the "administrative review law", the scope of our country administrative review includes the following specific administrative act and the abstract administrative act:

(a) the specific administrative act

1 administrative punishment. Such as administrative detention, fines, confiscation of illegal income, shall be ordered to suspend production or business etc..

2 administrative compulsory measures. Such as the mandatory summon, compulsory seizure, compulsory transfer.

3. administrative decision behavior. Such a license, license certificate change, suspend, revoke the decision, on the land, minerals, water and other natural resources ownership or use rights confirmation.

4 administrative tort. As a violation of operating autonomy legal, change or repeal the rural contract, infringement of the legitimate rights and interests of the relative party, illegal fund-raising, levied property, apportion expenses etc..

5 administrative omission. If not in accordance with the license, license certificate, not to perform the protection of personal rights, property rights and other legal obligations, not to pensions, social insurance etc..

6 other violations of the legitimate rights and interests of the relative party.

(two) the abstract administrative act

1 the following is considered illegal law (not including the departmental rules and local government regulations):

(1) the provisions of the State Council department.

(2) the provisions of the local people's governments at all levels and departments.

(3) the provisions of the people's Government of a township, town.

The rules for the review in accordance with the law, administrative regulations.

2 according to the "administrative review law", the following matters can not apply for administrative reconsideration:

(1) the administrative punishment made by administrative organs or other decision on personnel processing.

(2) made by administrative organs in civil disputes mediation or other processing.

In addition, acts of national defence, diplomacy, also can not apply for reconsideration.

　　Five, under the jurisdiction of administrative reconsideration

Administrative reconsideration jurisdiction means between different administrative reconsideration organ shall accept the reconsideration cases of authority and division of labor.

1 the specific administrative act of the departments of local people's governments at or above the county level of the decision, may apply to the administrative departments of people's governments at the corresponding levels or the departments at a higher level for administrative reconsideration.

To the customs, finance, taxation, foreign exchange management to implement the vertical leadership refuses to accept a specific administrative act administrative organs and state security organs, to the higher authorities for administrative reconsideration.

2. refuses to accept a specific administrative act of local people's governments at all levels, to the people's government at a higher level for administrative reconsideration. The government refuses to accept a specific administrative act of local people's agency of the province, autonomous region people's government established in accordance with the law of the agency, to apply for administrative reconsideration.

May 3 to the State Council or the Department of the province, autonomous region, municipality directly under the Central People's Government of the specific administrative act, to make the specific administrative act of the departments under the State Council or the people's government at the provincial level for administrative reconsideration.

Refuses to accept a specific administrative act agencies of the local people's government at or above the county level 4 established in accordance with the law of the people's government, to set up the agency to apply for administrative reconsideration.

Refuses to accept a specific administrative act of the government departments dispatched institutions established according to law to make its own name according to the provisions of the laws, regulations and rules of the local people's government at the same level, where the agencies to set up a department or the Department to apply for administrative reconsideration.

5 to accept the authorization of laws and regulations, organization of the specific administrative act, the applicant shall apply for administrative reconsideration to the local people's government, the direct management of the work of the Organization Department of the local people's government or the departments under the state council.

6 for the specific administrative act of two or more than two agencies make jointly with, to the common - level people's government or co - specifies the level people's government administrative organ for administrative reconsideration.

On May 7 cancellation made by administrative organs or the specific administrative act, the administrative organ at the next higher level continue to exercise their functions and powers to the administrative organ for administrative reconsideration.

Refuses to accept a specific administrative act to make 8. agencies, agencies, authorized organizations or revocation of administrative organs and administrative behavior, the local people's government at the county level may also be to the specific administrative act applies for administrative reconsideration, and the administrative reconsideration organ concerned.

The administrative reconsideration institutions refer to setting the administrative reconsideration organ for reconsideration within the organization.

　　Six, the basic procedure of administrative reconsideration

The administrative reconsideration procedure is divided into application, acceptance, trial, decision and implementation of five stages.

(a) application

1 for a reconsideration of the term: General for 60 days; the law for more than 60 days, in accordance with the provisions.

2 for a reconsideration of the form: can a written application, can also be oral application.

(two) accepted

After receiving the application for reconsideration, the administrative reconsideration organ, shall review within 5 days, and according to the results of the review decision to accept or refuse to accept.

(three) trial

The administrative reconsideration hearing reconsideration by written principle.

The administrative reconsideration decision is made, the applicant may withdraw his application for reconsideration, the reconsideration termination.

During the administrative reconsideration, execution of the specific administrative act shall not be suspended. But one of the following circumstances, can stop the execution:

The 1 respondent considers it necessary to suspend the execution;

2 the administrative reconsideration organ considers it necessary to suspend the execution;

3 applicants for a stay of execution, the administrative reconsideration organ considers that the request is reasonable, decided to stop the execution of the;

4 the law to stop execution.

(four) decision

The administrative reconsideration of specific administrative organ for reconsideration according to the facts, evidence and law review, deal with the specific administrative act is legal and is appropriate to make a reconsideration.

To make a reconsideration decision period is generally within 60 days of receipt of the application,; approved the extension, the extension shall not exceed 30 days.

(five) execution

The respondent shall perform the administrative reconsideration decision; the respondent fails to perform or delays the performance without justified reasons, the reconsideration organ or the relevant administrative organ at a higher level shall instruct its deadline to perform.

The applicant neither brings a suit nor complies with the decision of administrative reconsideration, the administrative reconsideration or fails to perform the final decision, respectively:

1 maintain the specific administrative act by the reconsideration decision, the administrative organ that enforce the law, or apply to the people's court for compulsory execution.

2 change the specific administrative act of the reconsideration decision, the administrative reconsideration organ according to law enforcement, or apply to the people's court for compulsory execution.

The twentieth chapter of administrative compensation

Learning focus problem

　　Concept and characteristic, administrative compensation

administrative compensation and administrative compensation for infringement, refers to the administrative main body and its staff in the exercise of administrative functions and powers, in the process, because it is illegal and violated the citizen, legal person or other organizations of the legitimate rights and interests and caused damage to the legal compensation, the administrative.

Executive compensation has the following characteristics:

1 administrative compensation is in essence a kind of national compensation;

Causes of the 2 administrative compensation is administrative tort behavior;

3 administrative compensation obligations can only be tort administrative organs;

4 the scope of administrative compensation limit tort damages caused to the specific administrative act;

5 administrative compensation liability is compensation for damage;

Legal liability of administrative compensation is the administrative main body 6.

　　Elements two, administrative compensation

The administrative liability must have the following three conditions:

(a) administrative tort

This is the first condition to constitute administrative liability. Includes three elements:

1 the implementation of administrative tort person must is the state administrative organs of civil servants or other authorized or entrusted to exercise state administrative staff;

2 administrative tort must be performed administrative duty behavior;

3 administrative tort must be illegal infringement of citizens, legal persons or other organizations of the legitimate rights and interests to damage behavior.

(two) the fact of damage

This refers to the legal rights of the parties by the objective harm of administrative infringement. Identification of damage fact should pay attention to the following points:

1 the damage must have already happened, the existence of damage;

The 2 injured rights must be protected by the law, the legitimate rights and interests of;

3 the fact of damage including material damage, personal injury and mental injury in fact.

(three) the tort and the damage has a causal relationship between the facts

This is the premise and foundation of legal liability of administrative subject to damage. There is a direct link between the logic of only the tort and the damage behavior, people can assume liability for tort.

　　The imputation principle three, administrative compensation

The imputation principles of administrative compensation has many kinds of opinions. Mainly have:

1 the principle of fault liability. Only the administrative subject and the civil service because the fault cause damage to the State shall bear the responsibility for compensation.

The 2 danger liability principle. Whether the administrative subject and its civil servants have no fault, as long as the duty violated the legitimate rights and interests of each phase and damage, the state should bear the responsibility for compensation.

3 illegal responsibility principle. Only the administrative subject and the civil duty of illegal violations of the legitimate rights of the relative party caused damage, the state should assume the liability of compensation.

Imputation principle of state compensation in our country is illegal responsibility principle.

　　Four, the scope of administrative compensation

The scope of administrative compensation, the scope of damage refers to the specific administrative act may request state compensation on which the specific administrative act.

According to the "State Compensation Law", in which citizens, legal persons or other organizations to administrative and civil servants of the following illegal administrative behaviors harm, have the right to request the state compensation:

(a) the illegal administrative acts of violation of human rights

Mainly includes the following several specific behavior:

1 illegal detention or unlawful compulsory administrative measure to restrict the personal freedom of a citizen;

2 illegal detention or otherwise unlawful deprivation of the personal freedom of a citizen behavior;

3 to beatings and other acts of violence or inciting others to beatings and other acts of violence causing physical injury or violations of civil death;

4 illegal use of weapons, weapons violations of civil cause bodily injury or death;

5 other violations caused by the citizen body injury or death.

(two) the illegal administrative acts violations of property rights

Mainly have the following several kinds of behavior:

1 illegal imposing fines, revoke the license and license, shall be ordered to stop production or behavior, confiscation of property and other administrative penalties;

2 illegal seizure, seizure, freezing of administrative coercive measures act on property;

3 in violation of state regulations, levying property, apportion expenses behavior;

4 illegal violations of property rights other injury.

　　Five, the administrative compensation liability exception

Citizens, legal persons or other organizations in any of the following circumstances to suffer damage, does not have the right to request the state compensation. This is also the administrative compensation liability exception:

1 executive staff with the exercise of powers of independent individual behavior;

2 where a citizen, legal person or other organization his act causes damage;

Other circumstances stipulated by law 3. Such as the military action, no force majeure etc..

　　Six, the administrative compensation request qualification and the scope of human

According to the provisions of the State Compensation Law >, (the administrative compensation claimant qualification is a violation of its legitimate personal rights or property by illegal administrative behaviors and its personnel damage conditions.

In our country, the citizen, legal person or other organization damages the legitimate rights and interests are entitled to compensation; the death of a citizen, its successors and their relatives with maintenance has the right to ask for compensation; the legal person or other organization is terminated, the legal succeeds its rights or other organizations also have the qualification of administrative compensation.

Specifically, in our country, the administrative compensation claimant consists of the following three categories:

1 natural person, citizen. Natural people including Chinese citizens, foreign citizens and stateless persons. Chinese citizens including: the aggrieved citizen himself or his legal representative; the injured citizens heirs and other relatives with maintenance.

2 legal person. Including enterprise legal person, legal authority, institutions, organizations, or the termination of the rights shall bear.

3 other organizations. The other organizations do not meet the qualifications of a legal person or do not have the qualifications of a legal person or other organization after its termination under its rights.

　　Seven, the administrative compensation obligation organ

The administrative organ liable for compensation is responsible for administrative subject liable for compensation.

China's administrative compensation obligations include the following:

(a) against the implementation of administrative organs

1 administrative organs exercising authority infringe upon the legitimate rights and interests of citizens, legal persons and other organizations and causes damage, the administrative organ for administrative compensation.

2 administrative staff abuse their administrative power of citizens, legal persons and other organizations of the legitimate rights and interests of damage, the staff of the administrative authority for the organ liable for compensation.

(two) the legal, regulations award administrative organization

Legal, regulations granted administrative organization in exercising the administrative power granted, infringement of citizens, legal persons or other organizations of the legitimate rights and interests of damage, the authorized organizations for administrative compensation. If the organization is the exercise of its inherent powers or granted non administrative rights violations of the legitimate rights and interests of citizens, legal persons or other organizations may not cause damage of administrative compensation.

(three) commissioning administrative organ

By the organization or individual agencies entrusted infringement of citizens, legal persons or other organizations in the exercise of the entrusted power to damage the legitimate rights and interests, shall be the organ for administrative compensation.

(four) the administrative reconsideration organ

after reconsideration reconsideration, initially causing violations of the administrative organ shall be the organ liable for compensation; administrative organ for reconsideration reconsideration aggravates the damage, the organ for reconsideration increasing part of obligation for compensation.

(five) the organ liable for compensation after the cancellation of the organ liable for compensation

1 continue to exercise the cancellation of the organ liable for compensation functions of the administrative organ.

The organ liable for compensation of 2 revocation of administrative organs.

　　Eight, the administrative compensation procedure

The administrative compensation procedure of administrative compensation claimant claims for administrative compensation to the state administrative organs for compensatory obligations, the administrative organ for compensatory obligations to grant the administrative compensation and the method to solve disputes by the people's court for administrative way, and steps.

The administrative compensation procedure includes non litigation procedure (administrative) and procedural (judicial) two parts. With its specific steps and methods. In general, the administrative compensation procedure to implement the "administrative deal first" principle.

The first is the process by which the claimant to court separately claiming administrative compensation litigation in administrative before, should first apply to the administrative organ liable for compensation for damages, the administrative organ shall be handled according to law. If the administrative process has failed to settle the dispute, the claimant may bring a lawsuit procedure.

(a) the non litigation administrative compensation (administrative) program

1 the request for administrative compensation to the organ liable for compensation claim for compensation.

2 the organization with compensation obligation to accept compensation request and pay compensation or refuse compensation in accordance with the law.

(two) the administrative compensation litigation (judicial) basic content of program

1 administrative compensation claimant through administrative deal first with the following administrative compensation litigation to the court.

2 after review court jurisdiction over a decision to accept or not to accept the administrative compensation litigation.

3 people's court trial and judgment or mediation. The negative part of the burden of proof of the plaintiff. Compensation litigation mediation.

4 execution of judgments.

　　Nine, administrative recoupment concept, elements and recovery and recovery

compensation is administrative compensation claimant to pay compensation to the cost of the state, shall be ordered to have the intent or gross negligence, civil servants law entrusted organization and personnel to assume partial or full Shao compensation costs.

The state administrative organs to exercise the right of recourse, must have two conditions:

1 the organ liable for compensation to loss of citizens, legal persons and other social organizations to pay compensation, the return of property or restored;

2 administrative personnel and organizations entrusted and person with intent or gross negligence in tort.

Recovery is the organ for compensatory obligations.

By the party is the administrative staff in the implementation of tort or the entrusted organization or individual.

　　Ten, China's state compensation way

according to China's "State Compensation Law" provisions, the national compensation compensation in money as the main way, the return of property, restitution and rehabilitation of reputation, apology, eliminate the impact of the mode of.

1 money damages. The victim's Losses converted into a certain amount of money, to offset the victim's loss. But if the other way more convenient and feasible, is applicable to other forms of compensation. Application of monetary compensation, shall not return or restitution is the premise of property.

2 the return of property. National authorities will illegally acquired property (generally refers to the original object and its fruits) returned to the victim. This method can only be applied to physical damage, especially out of control in goods, and only in the monetary compensation is more convenient than when.

3 restitution. Restitution of property or relative rights of people will be against illegal acts of state organs to damage before the shape, performance or state. This way can only in the more convenient than the money compensation case applicable.

4 other state compensation mode. The rehabilitation of reputation, apology, eliminate the impact of compensation. Usually apply to the state organs exercising authority restriction or deprivation of personal liberty, encroaches upon the citizen personal rights, and the citizen's right of reputation and the right of honour of damage in a range of cases. State organs in the correct illegal behavior, should be within the influenced scope of the infringement, eliminate the effect of rehabilitation for the victims, apology.

　　Eleven, the calculation standard of state compensation in China

(a) the calculation standard of compensation for personal rights damage

Personal rights damage includes the infringement of citizens' personal freedom right and infringement of citizens' right of life and health in two categories, including restrictions and deprivation of personal liberty, damages the personality right, damage the health cause disability, death. Calculation standard for compensation for the damage respectively:

Calculation standard of compensation for 1 personal liberty damages: with time multiplied by the amount of compensation for the custody of the daily general calculation. Daily compensation in accordance with the national annual average salary of the staff of calculation. "Last year" shall refer to the Compensation Commission authority, obligation of compensation for reconsideration decision of compensation or people's Court upheld the original decision of compensation last year made when. Average daily wage amount should be in annual average wages of staff and workers by the statutory working days calculation.

Calculation standard of compensation for 2 rights of life and health damage: (1) cause physical damage, it shall pay medical expenses and compensation for lost wages. The daily compensation for lost wages calculation according to the national annual average salary of the staff, the highest amount of 5 times the average annual wage countries. (2) resulted in the loss of some or all of ability, shall pay the medical expenses and disability compensation. Disability compensation according to the degree of loss of working capability determines the maximum amount: partially lost the ability to work for the national average annual wage to worker of the year 10 times; total loss of ability to work for the national average annual wage to worker of the year 20 times; the total loss of working capability, the ability to work without the support of the people, living expenses shall be paid. (3) caused a citizen dies, it shall pay compensation for death, funeral expenses. A total of countries on average wage of worker of the year 20 times. No working ability of the deceased dependent living expenses shall be paid.

(two) the calculation standard of compensation for property damage

According to the "State Compensation Law", the following treatment of citizens, legal persons and other organizations, property damage and compensation standards:

1 for a fine, confiscation of property, money, or in violation of state regulations, levying property, apportion expenses, shall return the property.

2 attachment, seizure, freezing property, shall terminate the seizure, seizure, freezing of assets; shall return the property damage, can restore the original, can not be restored to the original state, according to the extent of the damage compensate for; shall return the property loss, pay the corresponding compensation.

3 of property law enforcement measures, the property has been sold, the proceeds of the auction sale of payment.

4 rescission of a license or permit, order to suspend production or business damage caused during the suspension of production or business, compensation for current expenses incurred.

5 other damage caused to property right, compensation in accordance with the direct loss.

　　Twelve, the national compensation

The national compensation refers to the state organs of the compensation loss costs.

State compensation funds allocated by the state expenditure, are included in the fiscal budget at various levels, the specific measures shall be formulated by the state council.

The national compensation from the organ liable for compensation from the budget of the unit and the use of units of funds belong to the claimant to pay, payment to the financial organ at the same level application under. Authority, obligation of compensation for reconsideration and the people's court shall not charge anything to the claimant, the claimant for compensation of damages will not levy.

The twenty-first chapter of the administrative procedure law

Learning focus problem

　　Concept and characteristics, administrative litigation

Administrative litigation is an important legal system to resolve administrative dispute. The so-called administrative dispute, refers to the authorized administrative organs and the laws and regulations of the organization for the exercise of administrative powers and the other party disputes. Internal administrative dispute and external administrative dispute administrative dispute points. Administrative litigation and administrative review is the two main legal system of our country to solve the external administrative dispute.

In China, administrative litigation refers to the citizen, legal person or other organization believes that a specific administrative act authorized administrative organs and the laws and regulations of the organization has infringed upon their lawful rights and interests in accordance with legal procedures, to the people's court, the people's court in the parties and other participants in the proceedings of the people, the legality of concrete administrative behavior for examination and the decision of the system.

The administrative litigation of our country has the following features:

1 administrative cases by the people's court judgment.

The legitimacy of administrative cases and 2 people's court is limited to a specific administrative act and administrative organ of the disputes.

The pre stage 3 administrative reconsideration is not the necessary procedure or.

4 cases of administrative trial mode principle for trial.

　　Elements two, administrative litigation cases

In China, administrative litigation should meet the following five conditions:

1 the plaintiff is that administrative organs and laws, regulations authorized organization to make specific administrative acts infringe upon their legitimate rights and interests of citizens, legal persons or other organizations. The administrative organ or organization authorized by laws and regulations can not act as the plaintiff.

The 2 defendants made by administrative organs and organizations authorized by laws and regulations, the plaintiff argues that the specific administrative acts infringe upon their lawful rights and interests of the.

Administrative proceedings plaintiff must be 3 according to the laws, regulations and belongs to the court and belongs to the range of administrative dispute the court jurisdiction.

4 the plaintiff must be prosecuted within the statutory time limit.

Must pass through the administrative reconsideration before litigation of the 5 provisions of laws and regulations, has carried out the administrative reconsideration; choose the administrative reconsideration, the reconsideration organ fails to make a reconsideration decision or make the decision of reconsideration.

　　Three, the relationship between administrative litigation and civil litigation

Administrative litigation and civil litigation are two interrelated and have significant differences in judicial activities.

Generally speaking, the administrative litigation is separated from the civil litigation, the beginning of its development, are often subject to civil procedure. And many principles of justice are common, such as the open trial, withdrawal system, two final trial, collegiate system etc.. So there are two closely related. But the administrative litigation and civil litigation are two different procedures, there are many differences between them, are the major:

1 cases of different nature. Civil procedure is to solve the equality between the main civil dispute; administrative litigation is administrative disputes between the administrative subject and administrative counterpart as a citizen, legal person or other organization.

Substantive law applicable to different 2. Civil procedure rules applicable to civil, such as the general principles of the civil law; administrative litigation of administrative law, the law on administrative punishments, such as the regulations on administrative penalties for public security.

The 3 parties. Civil litigation in legal person, natural person, legal person between between nature and people; the administrative litigation only occurs between the administrative subject and the citizen, legal person or other organization.

4 different litigation rights. The civil proceedings in the litigation rights of the parties are equal, if one party against the other party can, counterclaim; administrative proceedings the parties litigation rights are not equal, if only by the citizen, legal person or other organization that one party brings a lawsuit, the administrative subject party no prosecution right and the right to counterclaim.

The first 5 different conditions of prosecution. Administrative litigation request to the presence of a specific administrative act as the antecedent condition; civil litigation is not a condition precedent to such.

The 6 is to reconcile different. To resolve disputes by mediation, is one of the civil litigation; administrative litigation is to review the legality of specific administrative acts, thus can not compromise with each other by the defendant and the plaintiff to resolve the dispute.

　　Four, the concept and characteristics of Administrative Procedure Law

(a) the concept of the administrative procedure law

Administrative Procedure Law refers to the adjustment of people's court and the parties and other participants in the proceedings are all litigation activities in the trial of administrative cases in the sum of legal norms and the formation of litigation. In short, the sum of legal norms of administrative procedure law is to adjust the legal relation of administrative litigation.

Administrative procedure law is divided into the narrow and broad sense. The administrative litigation law usually refers to the administrative procedure law in narrow sense is the code of administrative procedure. But in the actual administrative litigation in administrative litigation law is referred to the administrative litigation law generalized, including the code of administrative procedure, also includes other laws, regulations or applicable to administrative procedure principle, system and some specific provisions.

(two) characteristics of the administrative procedure law

Administrative procedure law to administrative litigation relationship as the adjustment object, which determines that it has the following features:

1 the administrative litigation law is an important branch in the legal system of our country. Administrative procedure law is one of the three major procedural law in our country. The basic administrative litigation law as the National People's Congress enacted, determines its important position in our legal system.

2 administrative procedure law is a kind of procedural law. Administrative procedure law is the specific norms of administrative dispute adjudication process and the people's courts and the participants in the proceedings of various activities in the litigation process standards.

(three) the role of Administrative Procedure Law (legislation)

Has the following three aspects of the role of the administrative procedure law (legislation):

1 ensure the court correctly, timely handling of administrative cases.

2 protection of citizens, legal persons or other organizations of the legitimate rights and interests.

3 safeguarding and supervising the exercise of administrative powers.

　　Five, the origin of the administrative procedure law

China is the origin of general administrative litigation law substantive mainly:

1 "people's Republic of China Administrative Procedure Law".

The provisions on administrative litigation laws, regulations 2.

The provisions of the 3 "Civil Procedure Law" can be applicable to administrative litigation.

4 the Supreme People's court and the Supreme People's Procuratorate on the trial of administrative cases, judicial interpretation.

Provisions of the relevant administrative proceedings of the 5 international treaties and executive agreements (except in China has declared reservation clause).

　　Six, the basic principles of administrative litigation

The basic principles of Administrative Procedure Law refers to the administrative procedure law, the main process through the administrative litigation, the basic norms and dominant effect on the administrative litigation activities.

The basic principle of the administrative procedure law is binding on the administrative proceedings. Whether the people's court or the parties and other participants in the proceedings, to follow.

The basic principle of the administrative procedure law mainly includes the following specific principles:

(a) the people's courts exercise judicial power independently according to law principles

The people's court according to the law on administrative cases exercise judicial power independently, not by administrative organs, social groups and individuals:

1 administrative adjudication by the people's court to exercise unified.

2 specific cases of trial, the people's court jurisdiction.

3 judges independence.

(two) taking facts as the basis, take the law as the criterion, principle

The people's court for the trial of administrative cases, taking facts as the basis, take the law as the criterion:

1 based on the fact that the requirements of the people's courts shall, before the judgment of the facts right.

2 take the law as the criterion, a people's court trial of administrative cases, whether the legality of specific administrative acts being sued for review, judgment or ruling or decision shall be conducted in accordance with the law.

(three) the specific administrative review principle of legality

Only when citizens, legal persons or other organizations on the legality of specific administrative acts of the objection, can be resolved through the way of administrative litigation, the specific administrative act and the administrative organ makes in the laws and regulations, authorized administrative discretion is reasonable, appropriate, and in principle only through administrative reconsideration by the executive discretion.

(four) the principle of equal status of the parties

Both parties in administrative litigation legal status is equal, the parties have equal lawsuit right and obligation. But this is not the original, the defendant litigation rights and obligations corresponding.

(five) the national language principle

In minority nationality or nationalities live together in one area, the people's court shall commonly used by the local ethnic language, text conduct hearings and issue legal documents, shall know local national common language, words for different participants in the proceedings to provide translation.

(six) the parties shall have the right to debate principle

In administrative proceedings, the parties shall have the right to the facts of the case have no, evidence of authenticity, applicable laws, regulations and the correctness of the various aspects of a debate.

(seven) collegiate bench, withdrawal and public trial, and the two final trial system

Administrative cases, strong technical knowledge, but also administrative litigation, a party to administrative organs, sole judge competency, the collegiate system to solve the administrative justice.

To ensure the case just before the trial, administrative litigation with civil, criminal, adhere to the principle of avoidance and the principle of open trial, and implement the two-tier trial system.

(eight) the people's Procuratorate shall comply with the principle of legal supervision

The people's Procuratorate has the right to exercise legal supervision over administrative litigation, administrative litigation activities in accordance with the law to safeguard the.

The twenty-second chapter the scope of administrative litigation

Learning focus problem

　　One, the scope of administrative litigation meaning

The scope of administrative litigation, also known as the competent court of the court, refers to the scope of accepting and hearing the administrative dispute.

From the relationship between the court and the administrative organ, the administrative lawsuit is refers to the court to which the administrative behavior of the administrative organ has the right to judicial review; from the citizen, legal person or other organization's point of view, the scope of administrative litigation refers to accept what the administration behavior of the Administration organization can sue to the court, to to seek judicial relief.

　　Two, establish the scope of accepting cases of administrative litigation

To establish the scope of accepting cases of administrative litigation determines the width of the case accepting range. There are 3 main ways to decide the world: one is the list, two is general, is a combination of the three type. China's "administrative procedure law" is taking the combined determination way, but with Chinese characteristics:

1 general provisions. "Administrative procedural law", the people's court the total scope is due to a specific administrative act of the dispute, eliminate the abstract administrative act administrative dispute suability.

General provisions 2 qualified. "Administrative procedural law", the people's court by the legitimate scope limited to specific administrative act, eliminate the specific administrative act is reasonable the dispute suability.

3 positive examples. "Administrative procedure law" 8 categories listed for the specific administrative act is legal disputes for the scope of accepting cases, excluding the legitimacy of other specific administrative acts in addition to the dispute suability.

4 certain individual lists. "Administrative procedural law", the people's court in addition to accept the above 8 types of administrative cases, also accepts the laws, regulations and other administrative suits which may be brought. This provision for the future through specific laws, regulations are gradually expanding the scope of the people's court to provide a legal basis for.

5 negative examples. "Administrative procedure law" lists for 4 kinds of matters of controversy does not belong to the people's court jurisdiction.

　　The standard three, to determine the scope of accepting cases of administrative litigation

According to the "administrative procedure law", set the standard of the scope of administrative litigation has the following three:

Standard 1 specific administrative act. The people's court only handle the disputes caused by the concrete administrative behavior. The specific administrative act, the administrative organ, refers to the legal regulations based authorization, according to a particular person or thing to make specific decisions, and have a real impact on their rights and obligations, i.e. with the behavior of legal interest relations behavior (including omission).

Personal rights, property rights standard 2. Seven class of actionable infringement administration as "administrative procedure law" expressly listed relative to the right of the person, property rights in specific administrative acts of the administrative relative person believes that a specific administrative act of administrative organs infringe upon personal rights, property rights of other people (such as political rights, labor rights, the right to rest, right and the right to education, culture), also belong to the scope of administrative litigation.

Interest standard 3 law. With the specific administrative act is legal interest of the administrative relative person refuses to accept this behavior, you can bring an administrative lawsuit according to law. The so-called legal relationship, refers to the specific administrative action directly affects the relative people of the administration legal relationship of rights and obligations. According to the provisions of the judicial interpretation: in any of the following circumstances, the administrative relative person may bring an administrative lawsuit according to law: (1) the specific administrative acts being sued to the neighboring rights or fair competition right; (2) and administrative reconsideration decision is the legal interest or be listed as the third people in the review process; (3) require the competent administrative organs shall be investigated for legal responsibility the offender in accordance with the law; (4) and revoke or alter a specific administrative act is legal interest relations.

　　Four, the people's court shall accept the case of administrative proceedings

According to the "administrative procedure law", the people's court citizen, legal person or other organization for the following specific administrative action taken by an administrative suit:

(a) the administrative punishment cases

Administrative penalty is a punishment of administrative relative person, the specific administrative act is a typical. Refuses to accept the administrative punishment and administrative litigation is a typical phenomenon in practice.

Administrative punishment behavior basically has the following kinds:

1 admonition punishment. Including warning and notification in two ways.

2 property penalty. Including fines, confiscated of the illegal income, the confiscation of illegal property.

3 behavior punishment. Includes two kinds: one is ordered to suspend production or business and suspension of license, license; two is revoked license, license.

4 the personal freedom penalty. Mainly refers to the administrative detention and reeducation through labor.

(two) cases of administrative compulsory measures

Administrative compulsory measures is a mandatory means the administrative organs according to the need of person or property restrictions, such as mandatory bundle drunk, compulsory military service compulsory transfer of reserve personnel, bank deposit. Generally speaking, if the party refuses to accept the administrative compulsory measures and administrative litigation should be based on the administrative compulsory execution measures as the object of litigation; separate prosecution execution behavior only in the administrative enforcement errors such as beyond the scope of the allocation of time.

(three) infringement upon the autonomy of business operation of the case

Operational autonomy is the independent market main body shall enjoy the deployment and use of human, and material property rights. The main form of autonomy practice violations of market operations are: forced and taxes, profit; compulsory enterprise name change, change the nature of an enterprise; force, division or merger, joint venture enterprises to change the membership relation; forced to sign, change, termination of the contract, the illegal confirm the validity of the contract; intervention, limited supply and marketing channels, in accordance with the law shall be replaced assembly of the representatives of the employees or the general meeting of shareholders or the board of directors elected or appointed leaders of enterprises, the legal representative. The administrative relative person refuses to accept the above acts, may file an administrative lawsuit.

(four) cases of administrative license

Refuses to accept administrative licensing act of administrative litigation is the person that meet the conditions for administrative license, administrative organ refuses to issue or not to reply to an action. As long as the administrative relative person gives permission, an administrative organ refuses to issue the permit or license or unresponsive, the applicant may file an administrative lawsuit.

(five) do not perform their statutory duties case

Protects the administrative relative person's rights, property rights are many administrative legal responsibility. The administrative organs do not perform their statutory duties, influence the realization of the rights of administrative relative person or to the administrative relative person's personal rights, property rights causes actual harm, the administrative relative person can bring an administrative lawsuit, administrative authorities or to continue to perform the duties of administrative compensation.

(six) pension cases

Pension is the military, the State functionaries, the militia, migrant workers and died due to illness, disability or death, the state as a I fund family members of the deceased or disabled, to subsidise their life, the money to maintain their own or family daily life. The administrative organ fails to grant pension or relief, welfare, insurance, bonus and so on, the administrative relative person may file the administrative proceedings.

(seven) cases of illegal demanded the performance of duties

Private party in administrative law obligations are set by the laws and regulations, such as tax, fee, service etc.. Administrative organs in violation of the administrative relative person to perform the statutory requirements and obligations, the administrative relative person has the right to bring an administrative lawsuit. The administrative organ for the administrative relative person to fulfill the obligations usually includes the duty and obligation of act of property.

(eight) other violations of personal rights, property rights cases

There are many kinds of the concrete administrative behavior, such as administrative decisions, administrative act, administrative inspection behavior, behavior, administrative reward administrative levy action etc.. Due to the specific administrative act in dispute, meet the criteria for determining the scope of accepting cases and not to the administrative procedure law explicitly excluded, all belong to the scope of administrative litigation.

(nine) other administrative case law, regulations can be prosecuted

"Administrative procedure law": the people's court accepts the laws, regulations and other administrative suits which may be brought. Include two categories: one is the "administrative procedure law" enacted before the promulgation of laws, regulations and some of the behavior of the administrative organ may can file a lawsuit to the court; two is the "administrative procedure law" after the implementation of the laws, regulations can bring an administrative lawsuit. Legal, regulations here, refers to the laws, administrative regulations, local regulations, autonomous regulations and separate regulations, not including the administrative regulations and other normative documents.

　　Five, the people's court shall not accept the case

(a) the national behavior

Acts of the state, the State Council, the Central Military Commission, the Department of defense, Ministry of foreign affairs in accordance with the Constitution and laws, in the name of the country to implement the relevant national defense and foreign affairs, as well as by the Constitution and the law authorized national authorities declared a state of emergency, the implementation of martial law and general mobilization behavior. An administrative counterpart on the behavior of national defense, diplomacy, a suit in a people's court shall not accept the.

(two) the abstract administrative act

The administrative relative person of the administrative regulations, rules or making of the administrative agency, released universally binding decisions, orders lawsuit to the people's court shall not accept. "Decisions with general binding force, the command", refers to the administrative normative documents of administrative organs for non specified objects release can be applied repeatedly.

(three) the administrative organs of the staff rewards and punishment, or decided

The people's court shall not accept the administrative relative person and administrative organ of the executive staff rewards and punishment, or decided to sue. The administrative organs of the staff rewards and punishment, or decision, is to determine the internal personnel management in administrative organs, belongs to the internal administrative behavior.

(four) the law by the administrative behavior of the final decision

The people's court shall not accept the administrative relative person filed by specific administrative acts that the final decision of the lawsuit against the law. There are two types of final administrative ruling: one kind is may apply for reconsideration may also directly to the court, but if the application for reconsideration, the reconsideration decision is final, not to the court; another kind is the party refuses to accept the administrative decision, apply for reconsideration to the relevant administrative organ only, the reconsideration decision is final, not to the court. Here the "law", refers to the National People's Congress and its Standing Committee, through the normative documents.

(five) the implementation of public security, state security organs in accordance with the explicit authorization of the criminal procedure law behavior

The people's court shall not accept an administrative counterpart on the implementation of public security, state security organs in accordance with the criminal procedural law of action. The implementation of public security, state security organs in accordance with the provisions of the Criminal Procedure Act does not belong to a specific administrative act, but the criminal justice act.

(six) the mediation and arbitration of administrative behavior

The people's court shall not accept the Arbitration Act of the administrative relative person of mediation and legal proceedings.

The concrete administrative behavior mediation is not a strict sense, both meaning but the parties said, the act of mediation is not binding on the administrative organ must itself and the parties. Therefore, not to the administrative organ for defendants in administrative litigation.

Arbitration is a legal provisions of the institution as a neutral person on the dispute between parties, determine the legal system has the legal binding force made in accordance with certain procedures. Choose the arbitration of the dispute resolution, means that both parties voluntarily accept "Finality" results, to give up the rights to the people's court.

(seven) does not have administrative guidance force

Administrative guidance is the administrative organ in the affairs of the scope of jurisdiction, according to the provisions of the state policy, or legal principles, in particular the administrative relative person, with the method of non mandatory or means, the administrative counterpart's consent or assist, effectively to achieve certain administrative objective active management behavior. Have no legal rights and obligations between the administrative organ and the administrative relative person. The administrative guidance act of administrative relative person to do not have the force of law suit to the people's court shall not accept the.

(eight) rejected the party brought double disposal action appeal for administrative behavior

The people's court shall not accept the administrative relative person to reject the parties mentioned double disposal action appeals against administrative action. Repeat the process behavior, also known as re disposal behavior, refers to the behavior of the administrative organ that accepts the appeal to the review of the complainant to maintain the original decision.

(nine) did not have a real impact on the citizen, legal person or other organization rights obligations

The administrative relative person's legitimate rights and interests are not infringed, cannot bring an administrative lawsuit. The administrative relative person to its rights and obligations are not really affect the behavior of a suit in a people's court shall not accept the.

The twenty-third chapter of the administrative litigation jurisdiction

Learning focus problem

　　The concept and types, the administrative jurisdiction

The administrative litigation jurisdiction refers to between the lower court and the court of division of labour administrative cases of the first instance. In other words, it is to solve the citizen, legal person or other organization believes that a specific administrative act belongs to the court by the scope of infringement of their legitimate rights and interests, sue to the level at which a court issues.

The administrative litigation jurisdiction to jurisdiction, jurisdiction and the jurisdiction of the ruling class three, grade jurisdiction and jurisdiction is stipulated by law, also known as "statutory jurisdiction":

1 jurisdiction and jurisdiction. To solve the division of jurisdiction between different courts jurisdiction; jurisdiction to resolve administrative cases by which area of the court issues.

2 statutory jurisdiction and jurisdiction by order. Legal jurisdiction refers to the direct jurisdiction established by law; ruling jurisdiction refers to the special case, jurisdiction is determined by the court to transfer, specify the behavior, including the designation of jurisdiction, jurisdiction over the transfer and the transfer of jurisdiction of three.

3 common single jurisdiction and jurisdiction. Mutual jurisdiction refers to two or more courts also have jurisdiction of a case; a single jurisdiction is only a court having jurisdiction.

　　The meaning and content of the two, the rank jurisdiction

Jurisdiction is to accept the division of labor and authority administrative cases of the first instance to people's courts at different levels.

Jurisdiction is the settlement of administrative cases in first instance by which court to accept and hear the question from the vertical. "Regulations on the jurisdiction of the administrative procedure law" is:

1 of the basic people's court jurisdiction. The basic people's court jurisdiction except the administrative cases of first instance under the jurisdiction of the people's court at a higher level of other administrative case of first instance.

Under the jurisdiction of the 2 Intermediate People's court. Intermediate people's court in three cases: (1) confirmed case of the invention patents and cases handled by the customs; (2) filed a lawsuit against the specific administrative acts made by the various departments of the State Council or of the provinces, autonomous regions, municipalities directly under the central government, the case; (3) the area of major, complicated cases. Any of the following circumstances, belong to "the area of major, complicated cases:" the people's governments at or above the county level, and the basic people's courts are not suitable for handling of cases; social impact, joint action, group litigation; the major foreign-related or relating to the Hongkong Special Administrative Region, Macao Special Administrative Region, the Taiwan area of the case other major, complicated cases.

3 jurisdiction of the higher people's court. The higher people's court shall have jurisdiction as a court of first instance within the jurisdiction of the great, complex.

4 jurisdiction of the Supreme People's court. The Supreme People's court shall have jurisdiction as a court of first instance within the scope of national major, complex.

　　Three, the concept and content of territorial jurisdiction

Territorial jurisdiction, also known as the "territorial jurisdiction", refers to people's courts at the same level acceptance of division of labour administrative cases of the first instance.

Jurisdiction is the grade jurisdiction to determine the premise, to deepen the jurisdiction. Is mainly to determine the jurisdiction of administrative cases of the first instance according to the relationship between people's court jurisdiction and party place or with the subject of litigation, the location of the.

Territorial jurisdiction is divided into geographical jurisdiction of the general and special region jurisdiction:

1 general jurisdiction. Also known as the "ordinary jurisdiction", refers to a specific administrative act in accordance with the original jurisdiction of the locality of the administrative organ determination. According to the provisions of the administrative procedure law, the following two kinds of circumstances, governed by the original specific administrative acts of administrative organs of the local people's Court: (1) all without reconsideration and directly to the people's court; (2) after reconsideration, the reconsideration organ to maintain the original decision.

2 special region jurisdiction. Also known as "special jurisdiction", refers to the people's court according to the specific administrative act is special or subject matter jurisdiction to determine the location of. Can be divided into: (1) because of the immovable property lawsuit, the immovable property is located under the jurisdiction of the people's court. (2) the mandatory administrative measures restricting freedom of the person refuses to accept the lawsuit, the plaintiff or the defendant shall be under the jurisdiction of the people's court in the locality. "The country of the claimant," including the plaintiff's domicile, habitual residence and restriction of personal freedom. The so-called habitual residence, domicile is the citizens to leave live continuously full 1 years. The so-called restriction of personal freedom is located, is refers to the citizen in custody, restriction of personal freedom of the location of the place.

3 common jurisdiction. The two or the people's court for more than two of the same administrative cases have jurisdiction. Includes three kinds of situations:

(1) after reconsideration, the reconsideration organ to change the original specific administrative act, which initially made the specific administrative act is located or by administrative organs of the seat of the people's court jurisdiction. The so-called "altering the original specific administrative act," includes three situations: first, the main facts and evidence to alter the original specific administrative acts as the basis; second, altering the original specific administrative behavior applicable and affect the qualitative; third, revocation, cancellation or alteration of the original specific administrative behavior treatment results.

(2) the mandatory administrative measures restricting freedom of the person refuses to accept the administrative lawsuit filed by the plaintiff, defendant or the local people's court.

(3) the critical property cases (such as due to critical reservoir, reserve case), the people's court for administrative regions have jurisdiction over.

Under these conditions, the plaintiff can choose two or more than two have a prosecution of the jurisdiction of the court. If the plaintiff to two or two or more people's courts that have jurisdiction over the lawsuit, the people's Court of jurisdiction by the first filed.

Four, ruled that the meaning and content of jurisdiction

Ruling jurisdiction refers to the people's court in some special cases, the ruling way of determining the jurisdiction of the court of administrative cases.

Ruled that the jurisdiction is the supplement of legal jurisdiction. Divided into specific:

1 transfer of jurisdiction. Refers to a people's court after the administrative case, found no on the jurisdiction, the case is transferred to the jurisdiction of the court. Accept to court if that transferred case is not under its jurisdiction, the reasons shall be explained, submitted to the common higher level court, by the designated jurisdiction of a lower court.

2 designated jurisdiction. Refers to a superior people's court to adjudicate way to specify a lower people's court an administrative case. Applies to the following two cases: (1) due to special reasons, the people's court has jurisdiction is unable to exercise jurisdiction. (2) the jurisdictional dispute between people's courts, if no agreement is reached through consultation.

Transfer 3 jurisdiction. Refers to the jurisdiction of administrative cases in moving between higher and lower level people's court. This movement must have three conditions: (1) the people's Court of first instance administrative cases over the hearing; (2) the people's court has jurisdiction in the case; (3) between the people's court and accept the transfer of people's court superior subordinate relationship of trial supervision.

Transfer of jurisdiction includes three cases: (1) the people's Court of first instance administrative cases under the jurisdiction of a people's court at the higher level trial; (2) the superior people's court to administrative cases of first instance jurisdiction over which the people's court; (3) an inferior people's court for the jurisdiction of administrative cases in first instance report to the people's court at a higher level the trial.

The 4 objection to jurisdiction. The parties to the hospital that appeals court has no jurisdiction over the case that.

Party raises objection to jurisdiction, must meet the following conditions: first, the main objection is a party to the case, the parties to the case including the plaintiff, the defendant; second, the object of the jurisdiction objection is the jurisdiction of administrative cases of the first instance; third, the jurisdiction objection of time need to be received in the people's court should notice 10; fourth, must be in written form objection.

The twenty-fourth chapter administrative litigation participants

Learning focus problem

　　One, the administrative litigation in the concept and the scope of human

Administrative litigation participants refers to participate in the administrative litigation parties and litigation agent. Among them, the parties including the plaintiff, the defendant, the common litigants, third.

Participants in administrative proceedings and administrative lawsuit participates in a person is different. Administrative lawsuit participates in a person is to participate in administrative litigation. Besides the judges, clerks, executive; in addition to the participants in the proceedings, including witnesses, appraisers and translators. Scope the scope of administrative litigation participants than participants in administrative proceedings is more widely.

　　The concept and characteristics of two, administrative litigation

Administrative litigation in the party, refers to the dispute because of the specific administrative act, action in its own name, trial results with interests in law, and subject to the people's Court of people bound.

Administrative litigation has the following characteristics:

(1) the rights and obligations of administrative disputes. This is the most basic feature.

(2) action in its own name. This is an important feature distinguishes between the agent ad litem.

(3) have a direct or legal interest relations with the result of the case.

(4) by the people's court restriction.

　　The three parties in administrative litigation, the litigation rights and ability and action ability

Litigation right ability is also called "the ability", refers to the ability to enjoy the rights and assume the administrative litigation in administrative litigation obligation qualifications. Only with this legal qualification, can in their own name to the people's court, and to participate in the proceedings, thus becoming the litigant of administrative litigation.

Civil litigation right from birth to death, destroy; legal and administrative litigation rights, since established in accordance with the law, to dissolution, bankruptcy, cancellation of destroy; other organization litigation rights ability, began to license from the competent authorities or approved the establishment, dissolution, cancellation of destroy to.

The capacity for action is also called "litigation ability", refers to the own behavior to exercise their litigation rights and perform the litigation obligation qualifications. Without the capacity to engage in litigation of the parties, not personally litigation activity, must be made by the legal representative for.

Civil capacity for action from the age of 18 years old start; at least 16 years of age, rely on their own labor income citizens also have the capacity to engage in litigation. Under 18 years of age (except for the citizens aged 16 years) and has over 18 years of age but mentally ill citizens without the capacity for action. Legal persons and other organizations and administrative capacity to engage in litigation and litigation rights ability is consistent, namely from them. Since the establishment, dissolution or termination to withdraw, declared bankrupt.

　　The four parties in administrative litigation, the litigation rights and obligations

Parties litigant rights mainly include: (1) the use of native language for litigation rights; (2) have the right to debate in the proceedings; (3) may entrust an agent ad litem of litigation rights; (4) with permission of the people's court, may consult the trial materials, but except those involving state secrets or personal privacy materials; (5) where evidence may be destroyed or lost or difficult to obtain later, may apply to the people's court for evidence preservation; (6) have the right to apply for property preservation; (7) have the right to challenge, to the people's court to avoid refuses to accept the decision, it may apply for reconsideration; (8) with the permission of the presiding judge, to witness, identification and inspection personnel the right to ask the question; (9) have access to and to request correction trial transcript rights; (10) the people's Court of First Instance judgement, may file an appeal within the statutory time limit; (11) the effective referee, think there is wrong, have appeal right.

One of the parties legal rights mainly include: (1) to the people's court effective referee, if the losing party within the statutory time limit to perform his obligations, prevailing party may apply to a people's court for compulsory execution; (2) the citizen, legal person or other organization is he bring an administrative lawsuit to the people's court rights; (3) the plaintiff has the right to apply to the people's court to stop the execution of the specific administrative act; (4) the plaintiff has to give up, change, increase the claim rights; (5) the plaintiff has the right to apply for advance payment; (6) the defendant pleading and defense rights; (7) the defendant to change the specific administrative acts of the right in the procedure of first instance.

The parties in the litigation rights enjoyed and obligations, must perform the following procedure: (1) the parties must exercise their litigation rights in accordance with the law correctly, not abuse of procedural rights; (2) the parties must comply with the procedural order, obey the court shall not prejudice the implementation of command, litigation order behavior; (3) the parties shall conscientiously carry out the people's court has effective judgment; (4) the defendant of administrative organs shall bear the burden of proof in administrative litigation; (5) the defendant of administrative organs in the course of legal proceedings, shall not collect evidence from the plaintiff and witnesses.

　　Litigation status and type five, the litigation representative

The litigation representative is a new system of judicial interpretation of the. Litigation status, litigation representative has the dual attributes of client and agent. From the type of view, representative of action can be divided into: (1) representative representative organization and group litigation; (2) representative elected and representative designated; (3) representative of single and multiple representative.

The litigation representative situations: (1) the lawsuit on behalf of partnership enterprise people. The partnership brings an administrative lawsuit, should be approved and registered trade name by the plaintiff, executive partner of the partnership affairs as the litigation representative. (2) the principal responsible person of organization as representative. Proceedings of other organizations do not have legal personality, the main person in charge of the organization as a litigation representative; if no major responsible person, can be elected by a responsible person for the litigation representative. (3) litigation representative group action. One of the more than 5 people, should be elected 1-5 litigation representatives to participate in the litigation; if the litigation representative not selected in the court within the time limit specified by the court, in its discretion litigation representative.

　　Six, the plaintiff's concept, characteristics and the plaintiff qualification confirmation and transfer

(a) the concept and characteristics of the plaintiff

The administrative litigation plaintiff is dissatisfied with a specific administrative act, the interested party to the people's court in accordance with the provisions of the administrative procedure law.

The legal characteristics of the administrative litigation plaintiff, the plaintiff qualification are as follows:

1 must be the administrative relative party of the administrative relative person. Administrative organs as the management party belongs to the administrative subject, so it does not have the qualification of the plaintiff.

2 must have a legal interest, namely the legal consequences of specific administrative act or affected by the.

The administrative litigation plaintiff is usually the administrative relative person directly, namely the specific administrative behavior consequence mainly responsible. But in the specific case, the administrative relative person even if not directly relative people can be the plaintiff of administrative litigation. Mainly in the following circumstances: (1) the specific administrative acts being sued to the neighboring rights or fair competition right; (2) and administrative reconsideration decision is the legal interest or be listed as the third people in the review process; (3) require the competent authorities in accordance with the law shall be investigated for legal responsibility of perpetrators; (4) and the cancellation or change the specific administrative act is legal interest relations.

3 must be that specific administrative acts infringe upon their legitimate rights and interests of the administrative relative person. The so-called "legitimate interests", refers to the legal rights and legal interests, is the core of legal rights, mainly refers to the personal rights, property rights; personal rights, property rights and other laws, regulations, provisions can be prosecuted, also belong to the "legitimate rights and interests". "Seven types of specific administrative act are administrative procedure law" (the administrative punishment, administrative coercive measures, autonomy in management, administrative license) the interests involved, whether belonging to the scope of personal rights, property rights, shall be deemed to be the lawful rights and interests "".

(two) the plaintiff's confirmation

The confirmed include the following circumstances:

The plaintiff qualification of 1 adjacent right people. The specific administrative act is related to the neighboring rights, citizens can bring an administrative lawsuit according to law.

The plaintiff qualification 2 fair competition right people. The administrative organ violates the fair competition right of market main body, the fair competition right has the right to bring an administrative lawsuit according to law.

The plaintiff qualification of the victims of the 3. The victim was against illegal acts shall be subject to administrative penalties refers to the legitimate rights and interests of another civil subject of administrative relative person. The administrative organ shall be investigated for legal responsibility of perpetrators, has a statutory duty of the administrative organ refuses to hold or not to reply, or although held but the victim that is too light, the victim has the right to the behavior of the administrative organ to bring an administrative lawsuit.

The plaintiff qualification in 4 and the cancellation or change the specific administrative act is legal interest of the administrative relative person. For an effective concrete administrative behavior, in that the illegal or improper, can take the initiative to apply for cancellation or alteration or. But to withdraw or change the violations to the following two kinds of administrative relative person rights and interests, relative person can bring an administrative lawsuit according to law: (1) the relative person, protect the legitimate rights and interests of depends on the specific administrative act is revoked or changed the related people, such as administrative punishment cases of the victim; (2) the specific administrative act of trust people.

5 and the decision of administrative reconsideration of the qualification of the plaintiff has the legal interest of the administrative relative person. The reconsideration decision to change or cancel the original specific administrative act, the relevant people think the original specific administrative action shall be maintained and the applicant refuses to accept the decision on administrative reconsideration, the administrative reconsideration decision shall have the right to file an administrative lawsuit.

The plaintiff qualification of human rights to use 6 of rural collective land. People who use such as the rural land contracting right of land (including individual farmers, township enterprises as well as the owners of the buildings and other individual or organization refuses to accept the administrative punishment) the use of rural collective land acts in his own name, file an administrative litigation.

The plaintiff qualification of 7 joint venture, joint venture, Co. Joint ventures, Sino foreign joint venture or cooperation enterprises, joint ventures, joint venture partners, joint venture, joint ventures, cooperative enterprises that the rights and interests of a party or his legal rights and interests against the specific administrative acts, may initiate an action in its own name.

The plaintiff qualification of 8 non state owned enterprises. Non state owned enterprises by administrative organs, revocation, cancellation of merger, merger, division or forced sale, change corporate affiliation, the enterprise or its legal representative may file a lawsuit.

The plaintiff qualification 9 partnership. The partnership enterprise bring a lawsuit to the people's court, shall be approved and registered trade name of the plaintiff, the partners executing the partnership enterprise affairs as the litigation representative lawsuit; other partnership organizations, partner Co plaintiffs.

The plaintiff qualification of other organizations do not have legal personality of 10. Other organizations do not have legal personality to the people's court, the main person in charge of the organization as a litigation representative; no responsible person, can be elected by the responsible for the litigation representative.

The plaintiff qualification 11 joint-stock enterprises. The joint-stock enterprises, the general meeting of shareholders, board of directors, the shareholders' representative assembly that violations of the specific administrative act of an administrative organ business autonomy, may bring a lawsuit in the name of the enterprise.

(three) the plaintiff qualification transfer

The plaintiff qualification transfer refers to the right to sue the citizen, legal person or other organization in the out of court ability, transfer the plaintiff's qualification to the legal system of others.

The plaintiff qualification transfer system is to protect the subject qualification of plaintiff's legitimate rights and interests. Subject to accept the plaintiff qualification have no plaintiff qualification, due to the existence of a legal relationship with the body have the plaintiff qualification of plaintiff qualification, lost in these subjects, obtained the qualification of plaintiff.

There are two kinds of plaintiff qualification transfer:

1 have the right to prosecute civil death. Have the right to litigate citizen is deceased, his near relatives may bring the suit. Their close relatives, including spouses, parents, children, brothers and sisters, grandparents, grandparents, grandchildren, Sun Zinv and other support, support relatives.

In addition, the citizen because of restriction of freedom of person and not a lawsuit, his near relatives may according to the oral or written authorization in the name of the civil litigation.

2 legal persons or other organizations to terminate. Legal person has the right to file a lawsuit or other organization is terminated, the legal person or other organization bearing rights may bring the suit.

　　Seven, the defendant in administrative litigation concept, characteristics and the defendant qualification confirmation and transfer

(a) the concept and characteristics of the defendant

Defendant in administrative litigation, the plaintiff is defined by a specific administrative act that it made illegal and violated their legitimate rights and interests and to the people's court, the people's court after notice to participate in the respondent, and authorized by the people's Court of final judgment by the administrative organ or the law, regulations of the organization.

The defendant shall meet the following conditions:

1 shall be the administrative organs and the organization has the ability of administrative litigation rights. Including: (1) with administrative litigation power capacity of the administrative organ, which can legally independent parallel to the administrative authority of administrative agencies, including the departments of people's governments at all levels and functions of the Township People's government to the State Council. In addition, laws and regulations, granted the administration of social organizations has the ability of administrative litigation rights, can become the defendant. (2) not (administrative) authority organ or tissue can also be due to administrative litigation in the name of the legitimate rights and interests of citizens to influence or other organization behavior and the defendant.

2 be the administrative authority in the midst of the specific administrative legal relationship and make specific administrative acts. Only the specific administrative act on specific administrative relative person (including the original decision after reconsideration and change the original decision after reconsideration) authorized by laws and regulations, administrative organ or organization, can become the defendant in administrative litigation.

3 must be the plaintiff accused and approved by the people's court appearance notice. After the people's court review, confirm authorization accused the administrative organ or the law, regulations of the organization with the above two conditions, and notify them to participate in the litigation activities, can become the defendant.

(two) the defendant confirm

The master by the defendant. The court held that the plaintiff suing the defendant is not suitable, should notify the plaintiff to alter the defendant, the plaintiff does not agree to the change, can only reject not directly change. Court held that the defendant shall be added, the plaintiff did not agree with the additional, only third people to participate in the litigation as a notice of its.

To determine a basic point of departure of the defendant in administrative litigation is the exercise of administrative authority, the administrative organ constant as the defendant, the administrative organ shall not counterclaim.

The defendant in administrative litigation should be determined according to the following principles:

1 direct prosecution, to make the specific administrative act shall be the defendant. Direct against the main three cases: (1) laws and regulations, no provisions must first by the administrative reconsideration; (2) administrative omission; (3) can choose to administrative reconsideration and the administrative litigation, the parties choose a lawsuit.

For the administrative organs set up and vested with administrative functions but does not have the ability to bear the legal liability of independent institutions, or the administrative organ within institutions, agencies in the existing laws, regulations or rules that mandate, in their own name to make concrete administrative behavior, is the administrative organ shall be the defendant.

2 upon the approval of the superior administrative organs of the specific administrative act, signed in the foreign legal instruments on the organ for the defendant. The specific administrative act after the approval of three different situations: first, the specific administrative act approved by the superior administrative organ, but signed legal documents is the lower administrative organ, the administrative organ should be the defendant. Second is a specific administrative act, the approval by the higher administrative organs, signed in the legal documents of foreign legal effect is on higher administrative organs, administrative organs at higher levels should the defendant. Third is, the specific administrative act approved by the superior administrative organ, the administrative organ at a higher level and the lower administrative organ in the legal documents signed on at the same time, should the administrative organ and administrative organ at a higher level as a joint defendant.

3 two or more administrative organs to make the same specific administrative act, the administrative organ is the CO defendant. The so-called common to make a specific administrative act, the administrative organ is refers to two or more jointly made and signed. The administrative organ and does not have the qualification of administrative subject of another organization (such as the party organizations, trade unions and other) signed to a specific administrative act, the organization can not become a co defendant in administrative litigation, can only participate in the proceedings as the third people.

4 after reconsideration, but the reconsideration organ to maintain the original specific administrative act, making the original specific administrative act, the administrative organ shall be the defendant.

5 after review and reconsideration organ to change the original specific administrative act, the reconsideration organ shall be the defendant. The reconsideration organ in altering the original specific administrative behavior includes three kinds of situations: (1) the main facts and evidence, the organ for reconsideration in altering the original specific administrative behavior of the administrative organ for reconsideration; (2) altering the original specific administrative behavior of applicable laws, regulations or rules, and therefore qualitative to the original specific administrative acts of the impact; (3) the reconsideration decision revoked, part of rescinding or modifying the original specific administrative behavior treatment results.

To authorize the 6 laws and regulations, organization of the specific administrative act, the organization is the defendant. The specific administrative action organization authorized by law within the scope and range independent in their own name to the lawsuit, the authorized organization for the defendant. But the law, regulations or rules that authorize the administrative organs of internal organs, agencies or other organizations, the implementation of administrative behavior beyond the authorized scope, if a party refuses to accept the lawsuit, should be the implementation of the behavior of institutions, departments or organizations for the defendant.

7 has not been formed within the institutions authorized administrative organ or the administrative organ of the body made the specific administrative act, the administrative organ to the defendant. The administrative organ within institutions or agencies in the absence of laws, regulations or rules mandate, in its own name a specific administrative act; or the administrative organ to administrative functions but does not have the independent ability to bear legal liability formed and institutions, to the specific administrative acts made his own name, if a party refuses to accept the lawsuit, should take the administrative organ or the administrative organ formation mechanism for the defendant.

The specific administrative act of 8 commissioned by the administrative organizations, the entrusting organ shall be the defendant. Administrative organs in the absence of laws, regulations or rules and regulations to circumstances, authorize its internal institutions, agencies or other organizations to exercise administrative power, should be regarded as the principal. The entrusted organization that refuses to accept a specific administrative act, the administrative organ should be entrusted to the defendant.

9 administrative organs were removed, continue to exercise their functions and powers of the administrative organ shall be the defendant. The specific circumstances of administrative organs revocation are: (1) after the revocation authority transfer, transfer the administrative authority to other administrative organs; (2) administrative merger, namely the administrative organ is incorporated into the other administrative organs or the establishment of a new organs and other administrative organs after the merger; (3) administration separation of power, namely, the organ is composed of a main body are divided into several subjects. If you do not continue to exercise their functions and powers of the authority, to cancel the decision by the administrative organ or its designated administrative organs for the defendant.

10 shall perform the obligations of protecting right of the person, property right of the statutory duties of administrative relative but refuses to perform the administrative organ shall be the defendant. The specific forms of omission, including explicit repudiation or implied no reply two.

(three) the defendant qualification transfer

Transfer the defendant qualification refers to the subject a defendant qualification has been revoked, transfer the defendant qualification to other administrative organs.

The defendant qualification transfer conditions:

1 the defendant qualification of administrative organs or authorized organizations revoked, in the law of the body has been eliminated.

2 administrative organs were removed, the authorities continue to exercise by other subjects to exercise their functions and powers, the organ shall be the defendant.

3 administrative organs is revoked, the administrative authority along with the transformation of government functions and no longer exists, to the enterprises or social organizations, decided to cancel the administrative organs by the defendant.

　　Eight, the third party in administrative litigation

(a) the concept, the characteristics of third

The third party in administrative litigation, refers to (be) interested in specific administrative acts administrative proceedings, and thus the impact may be administrative litigation result, according to my application and approval or notification by the people's court in the proceedings of the administrative relative person.

Third people with the following characteristics:

1 third is the original, the defendant of the administrative relative person. It is not a lawsuit, nor the party.

2 of third people to participate in the litigation time specific. The plaintiff sued, before the end of the first instance trial.

3 of third people has the diversity in the subject. It can also be a number of individuals or organizations; can be civil subject, also is the administrative main body.

4 third people are the same (be) interested in a specific administrative act filed a lawsuit against the people. Interest refers to the specific administrative act is legal rights and obligations, including direct and indirect stake.

(two) confirmed that third people

From the administrative judicial practice, third species are mainly in the following two categories:

1 similar to the plaintiff status third. These third people in administrative law basically is in the relative person or relevant person's status, most of them have the qualifications of the plaintiff, but did not bring an administrative lawsuit as plaintiffs. Its manifestations are: (1) the administrative punishment cases of the person being punished or victim. (2) was the right person or other claim rights in real estate, mineral, forest and other administrative jurisdiction in the case. (3) the administrative licensing in the case of the licensee or licensing dispute people. (4) in the case of administrative ruling party appealed to the court, not against a party can participate in the proceedings as the third party. (5) in addition to these types of situations, the specific administrative behavior not to prosecute other interested parties.

2 similar to the status of the third people. The third people in the basic position of administrative subject in the administrative legal relationship, which are divided into the following two categories: (1) the sued specific administrative act is the common behavior of the defendant and the administrative subject. The third people should be as a defendant, but no prosecution. (2) the specific administrative acts of administrative subject and the other does not have the qualification of administrative subject individuals or organizations jointly signed by the person or organization, does not have the qualification of administrative subject can be third people to participate in the litigation as. These third people for not administrative body and cannot be accused, but can be third people. (3) two to contradict the specific administrative act, an accused, another can participate in the third person action.

(three) third people to participate in the litigation procedure

There are two kinds of third people to participate in the litigation procedures and methods:

The 1 initiative to apply for. If a citizen, legal person or other organization that has an interest relationship with the specific administrative act of their own, can put forward to participate in the proceedings of the application to the people's court, the people's court shall decide whether or not to grant the approval.

2 court. If the court thinks interested citizens, legal persons or other organizations of a certain and specific administrative acts being sued, should notice to the identity of the third people to participate in the proceedings, whether to participate in the notify party to decide. But for similar to the status of the first, 2 class third people, if not to participate, will bear the adverse consequences similar to the "default".

　　The concept and category nine, the co litigants

(a) the concept of the common litigants

Joint action refers to the common case of the parties. The so-called common lawsuit, refers to one or both of the parties for two or more subjects, because of administrative cases occurred the same specific administrative act, or by the specific administrative acts of the same administrative cases, the people's court may adjudicate litigation.

Object of litigation in administrative litigation is the subject of litigation and non litigation with the (claim) merger, that is a case of two or more than two of the plaintiff or the defendant, or the original defendant is more than two. The plaintiffs are two or more than two subjects, known as joint plaintiffs, defendants; two or more than two of the subject, called the CO defendant.

(two) species and common lawsuit people's joint action

According to the conditions for the establishment of joint action, joint action can be divided into necessary joint action and the common joint action. Accordingly, the co litigants are divided into the necessary joint action and the common litigants ordinary.

1 necessary joint action and the common litigants. A necessary joint action, refers to one or both of the parties for two or more subjects, because of administrative cases occurred the same specific administrative act, the people's court shall adjudicate litigation. A necessary joint action in the party is the necessary common lawsuit people.

The following can be necessary common lawsuit caused by: (1) two or more persons jointly implement the illegal act, are sanctions against administrative organs in the same decision, sanctions against per capita prosecution; (2) administrative organ shall give a legal person or any other organization and the responsible person in the same decision are sanctions, the two are not to prosecute; (3) the common victims more than two refuses to accept the administrative organs for the perpetrators of the administrative sanctions and the prosecution; (4) be sanctions and injures both sides refused to accept the administrative sanctions and the prosecution; (5) administrative departments of more than two to make the same specific administrative act if a party refuses to accept the prosecution.

2 common joint action and the common litigants. Common joint action, refers to one or both of the parties for two or more subjects because of administrative cases, the specific administrative acts of the same, the people's court may adjudicate litigation. The common joint action in the party is the common joint action.

Any of the following circumstances, the people's court may decide the merger trial: (1) the administrative organs of more than two respectively according to different laws or regulations, on the same fact made the specific administrative act, the citizen, legal person or other organization refuses to accept the prosecution to the same people's court; (2) the administrative organ on the same facts on some citizens the legal person or other organization, which made the specific administrative act, the citizen, legal person or other organization refuses to accept the prosecution to are the same people's court; (3) in the course of legal proceedings, the defendant to the plaintiff made the specific administrative act is not new, the plaintiff to sue in the same people's court; (4) the people's court that the other circumstances can be handled together.

(three) the group litigation

In administrative litigation group lawsuit, refers to the number of elected representatives to participate in the litigation and the court's decision and all the stakeholders of the administrative litigation. It is a special form of common administrative litigation.

Group litigation has the following characteristics:

The number of 1 plaintiffs numerous. The co plaintiff number must be 5 or more people. The so-called "5 or more", refers to the number of entities with independent qualification of plaintiff, rather than the number within the same plaintiff.

The 2 plaintiffs litigation representative system. The group litigation the plaintiff shall elect representatives to participate in the litigation procedure. The litigation representative must be a party.

3 court judge effect not only in the litigation representative, also on other not personally participate in the proceedings.

Litigation representative group litigation of 4 people in two ways: (1) the plaintiff elected within a specified time limit; (2) if the plaintiff selected failed in the court within the time limit, the court's authority from the specified in the.

A total of 5 representative litigation limit is 1-5.

Group litigation and litigation is different from common. Joint action in the common litigants must participate in the proceedings; and group litigation because of the large number of parties, may not have to participate in litigation activities, so it can send representatives to participate in the proceedings.

　　The concept and category ten, agent ad litem

An agent ad litem refers to the name of the party, replace or assist the parties in lawsuits in agency within the purview of the people. Where the parties refers to the plaintiff and defendant, and third people, is the agent in the legal relationship of agent.

Characteristic of the litigation agent can be summarized as follows:

1 of them are in the name of the principal and not in his own name in administrative litigation activities, to participate in the proceedings for the purpose of maintaining agent instead of their legitimate rights and interests. The litigation agent may only one of the parties, but not at the same time as the multi agent.

2 agents ad litem must activities within the agency power, the consequences borne by agents. The authorization to act beyond is invalid, the consequences from the agent ad litem themselves.

An agent ad litem may include the following:

1 legal representative. According to the law to exercise the right to legal representation, the incapacity or restricted capacity citizens to participate in the litigation, which is equivalent to the legal status of the agent, the principal of the exercise of litigation rights and undertake by agents of the litigation obligations, in order to maintain the mental patient or minor litigant's legitimate rights and interests of the agent.

The statutory agent is the sole agent, in the same position and party in the lawsuit, the agency permission is unrestricted, all litigation legal agent for disposal, including entity right behavior, as the action agent himself for, and have the same legal effect.

2 designated agent. That is designated by the court, the litigation incompetent civil litigation activities.

Specifies the proxy is only applicable to as management relative citizens, does not apply to the administrative organ or organization.

Designated agent is mainly applicable to the following conditions: (1) the legal agent death, declared missing or are unable to participate in the proceedings and litigation proceedings, no agent, and must be carried out; (2) the parties in the litigation has lost the capacity for action, and no legal representative; (3) the parties have more than two statutory agent, but they fight each other for prevarication or agency.

Designated representatives shall have the right in accordance with the law, no legal capacity of the citizen agent for all acts of litigation, the litigation status similar to the statutory agent. After all, is the designated agent instead of legal agent, which can only conditionally measures by the agent's substantive rights; can only exercise the power of agency designated by a court in the proceedings.

The twenty-fifth chapter administrative proceedings

Learning focus problem

　　One, the concept, types and conditions of prosecution

The prosecution refers to the citizens, legal persons or other organizations that their legitimate rights and interests by the administrative organs of the specific administrative act of infringement, and filed a lawsuit to request the people's court, request the people's court through the exercise of judicial power, action to protect their legitimate rights and interests in accordance with the law.

Sue is a unilateral action the plaintiff to exercise the right to sue.

There are two types in administrative litigation:

1 directly to the people's court. The provisions of the laws and regulations, no must after reconsideration, citizen, legal person or other organization refuses to accept a specific administrative act of, have no choice but to bring a suit directly to a people's court for reconsideration.

2 the reconsideration to the people's court. Includes two kinds of situations: one is the legal, regulations clearly must go through the review procedures to the people's court, the parties after administrative reconsideration, the administrative reconsideration refuses to accept the decision of a people's court; two although the laws and regulations, no provisions must be after the reconsideration to the prosecution, but the citizen, legal person or other organization voluntarily choose to application for reconsideration, refuses to accept the reconsideration decision, then to the people's court.

The prosecution shall meet the following conditions:

1 the plaintiff must is that citizens, legal persons or other organizations specific administrative acts infringe upon their legitimate rights and interests.

2 have a definite defendant. The plaintiff in the lawsuit, be clear on which the administrative organ or to authorize any laws and regulations, organization.

3 specific claim and the facts. The specific claim refers to the specific content of plaintiff to request the people's court to give judicial protection. The plaintiff's claim has four basic types: (1) the revocation; (2) the deadline to fulfill the action; (3) the change of action; (4) confirmation. According to the facts and evidence in the case include the fact that.

4 belong to the people's court by the scope and be subject to the jurisdiction of the people's Court of appeal.

　　Two, the admissibility of the concept, content and legal consequences

Acceptance refers to the prosecution, to suit the review by the people's court, the prosecution condition, decided a case on behavior.

The plaintiff's prosecution and the court are two different but closely related litigation behavior. The prosecution is to accept the premise, but accept the inevitable result is not to prosecute. Whether or not to accept the court is unilateral acts according to national jurisdiction to review the prosecution behavior results after. The court after receiving the complaint, the content and the form shall form a collegiate court of prosecution for review, and to accept it or not according to the results of the review decision.

The main content of review of prosecution of the court is: (1) whether the plaintiff qualification; (2) whether the defendant qualification; (3) the plaintiff whether a specific claim and the facts; (4) claims whether belonging to the scope of authority of administrative trial and appeals court jurisdiction; (5) the legal or designated agent, representative action, whether legal or appointed agent, representative action and the litigation agent to sue, the agency compliance with statutory requirements; (6) laws, regulations and administrative reconsideration for the lawsuit is a necessary procedure review; (7) is more than the legal prosecution the term; (8) the prosecution whether repeated prosecution; (9) the prosecution has withdrawn the prosecution to prosecute if there are legitimate reasons; (10) the litigation validity judgment whether the restriction; (11) the prosecution have other statutory requirements.

Usually, only to meet the administrative procedure law on the prosecution conditions, the people's court to be accepted. But in practice, there are also some shall accept a special case: (1) the plaintiff or the appellant failed the fees for accepting the case in accordance with the provisions of the time limit, nor the postponement, reduction, exemption from the application, or the application is not approved, according to the automatic withdrawal. In accordance with the withdrawal of treatment, the plaintiff or the appeal within the statutory time limit to sue or an appeal, and to solve the problem of litigation fees; (2) the people's court to revoke the concrete administrative behavior, citizen, legal person or other organization, the specific administrative act of the administrative organ to make decision and sue to people the court; (3) executive specific administrative acts, did not make or do not have the service of legal documents, the citizen, legal person or other organization refuses to accept and to the people's court and can prove the existence of the specific administrative act.

Any of the following circumstances, the people's court shall be ruled inadmissible; have to accept, reject: (1) claims does not belong to the scope of administrative jurisdiction; (2) the plaintiff without the plaintiff qualification; (3) the defendant and the prosecution staggered refusing to grow more; (4) the law must be legal or appointed agent, representative action, not by legal or appointed agent, representative litigation; (5) by the agent ad litem for prosecution, the agent does not meet the statutory requirements; (6) charges in excess of the statutory period without a justifiable reason; (7) the administrative reconsideration as proceedings necessary procedure and does not apply for reconsideration in accordance with the provisions of laws, rules and regulations; (8) the prosecution of repeated prosecution; (9) the people's court shall permit the withdrawal, the plaintiff to prosecute for the same facts and reasons; (10) subject to the proceedings of the validity of the ruling power; (11) charges does not have other statutory requirements. The above situation can be corrected or changed, the people's court shall specify the period remedy or rectification; within a specified period of time has been supplemented or corrected, shall be accepted by the.

After the people's court review that the prosecution of compliance with the statutory conditions for acceptance, it shall file a case within 7 days, inform the plaintiff; the complaint does not meet the requirements, it shall make a decision within 7 days, inform the plaintiff refuses to accept the. Not 7 days to decide whether to accept, should be the first to accept; after the acceptance of the application review do not meet the conditions of prosecution, the court rejected the prosecution. The plaintiff refuses to accept and reject the prosecution ruling, after receiving orders within 10 to a higher people's Court of appeal. The appeal by the people's court within 7 days, neither the filing and not to make a ruling, the prosecutor may apply to the people's court at a higher level appeal or prosecution. The people's court at a higher level shall be accepted that meet the conditions for acceptance, acceptance can be transferred or assigned; the lower people's court, and also can be heard.

The prosecution is approved, which produce the legal consequences:

The legal consequences of the specific administrative act of 1. Mainly includes: (1) the prosecution is accepted, the specific administrative act is not final legal effect, should be the people's court judgment. (2) according to the provisions of the administrative procedure law, specific administrative act shall not be suspended during the proceedings, except in special circumstances.

The 2 procedure law consequences. The appeal by the people's court once hear a case, the case is to determine, except in cases as stipulated by law, the people's court shall not arbitrarily removed and the legal relationship of the parties; the prosecution and responding to both sides are respectively made the plaintiff or defendant's lawsuit status, each shall have the right of action, bear duty of litigation; plaintiff may not have the same case to the people's court or any other people's court prosecuted; the administrative organs shall not collect evidence from the plaintiff and witnesses.

　　Three, administrative litigation procedure of first instance and the meaning of the specific content

Administrative litigation procedure of first instance, is refers to the people's court in accordance with the statutory jurisdiction of the case the first trial procedures.

Administrative litigation procedures of first instance, including the specific content of the following aspects:

(a) preparation before trial

Pre trial preparation is a collegial panel to conduct the trial stage of the proceedings must pass before the administrative cases.

Pre trial preparation includes the following contents: (1) should be prosecuted and responding to the notice sent copies of pleadings, will send a copy of the plaintiff; (2) review to decide whether or not to trial or the trial; (3) a preliminary review of litigation documents and evidence materials; (4) to decide whether to stop the ruling enforcement of administrative act; (5) preparation and Research on the trial of the case on the basis of legal documents required for the.

Preparation before trial, according to the application of the party ruling for prior execution or adopt measures for the preservation of property; if the parties do not apply, the court may order to adopt property preservation measures in accordance with the law. The parties to the property preservation or execution is dissatisfied with the ruling, it may apply for reconsideration. Order shall not be suspended during the period of reconsideration execution.

(two) proceedings

1 session of the preparatory stage. Preparations are: (1) the collegial panel meetings held. (2) summons, notify the parties and other participants in the proceedings. (3) notice.

2 court review stage. The examination content is: (1) identify the parties and other participants in the proceedings are present. (2) the discipline of the court announced by the clerk. (3) the clerk declared: please the participants in the proceedings and other participants in the proceedings at the trial, the judge; please long (a jury) seat. To judge the report lawsuit participates in a person to appear in court, that court preparations are ready, please judge officially announced the court. (4) the judge announced the court. (5) announced the litigation rights and obligations, and inform the parties of the. The judge declared after the hearing before the conclusion of the court debate, the parties concerned may apply for withdrawal. The people's court shall, within the statutory time limit to verbal or written decision. The applicant to reject the application for withdrawal decision disaffected, can apply for a review. During the period of reconsideration, the challenged personnel shall not suspend his participation in the proceedings. The applicant's application for reconsideration, the people's court shall make a reconsideration decision within 3 days, and notify the applicant of the decision.

3 the court investigation stage. The court investigation content is: (1) the plaintiff indictment was read, read the pleadings. (2) the statements of the parties and questioning the parties. (3) asking the witness, witness testimony material review. (4) query evaluation, inspection, review the appraisal conclusion, the written record of the inspection. (5) review of documentary evidence, material evidence and audio-visual materials. The parties shall have the right to present new evidence at the court, can also be asked to identify, investigation or inspection, it shall be decided by the people's court. If the collegial panel that the facts have been ascertained, the presiding judge can declare the court investigation ends, entered the debate.

4 the court debate stage. Court order is: by the plaintiff and his agent ad litem speech, again by the defendant and his agent ad litem reply, then both sides debate. Third people to participate in the proceedings, shall speak again in the speech.

Court presided over by the presiding judge. When the judge should identify the fact has been debated clearly, then announced the end of the debate. During the trial, the defendant in order to consult the original final opinions, announce an adjournment, the collegial panel for review.

5 collegiate stage. In the discussion, the members of the collegial panel can be equal to show their opinions on the case. The members of the collegial panel disagree, apply the principle of majority rule, according to the majority decision. Review process made the records of the deliberations, review of different opinions shall be truthfully recorded in the transcript, signed by all members of the collegiate bench.

6 open the sentencing phase. Whether or not a public hearing administrative cases, should open verdict. Can the in court judgment pronouncement, the presiding judge in the end of recovery after the court adjourned, the in court judgment pronouncement, and within a certain period, the decision to send the book. Not the RJC need to be submitted to the judicial committee for discussion and decision of the case, should be regularly sentence. A fixed date, immediately after the pronouncement to the verdict. In his ruling, shall inform the parties send judgment (ruling or conciliation document) time and matters related to the appeal filed.

7 closed court. The presiding judge declared closed court.

　　Rule four, hinder the administrative proceedings

In administrative proceedings, hampering of litigation are the following: (1) have the obligation to assist in execution of the people, for the people's court notice for assistance in execution, no excuse, refuse or impede the implementation of the. (2) forgery, hiding, destroying evidence. Instigating, suborning, (3) stress or threatening others to commit perjury, prevent the witness. (4), transfer, sale, the hidden damage has been seized, seizure, freezing of property. (5) using violence, threats or other means to prevent the people's court personnel in carrying out their duties or disturbing the order of the people's court. (6) for the personnel of a people's court, participants in the proceedings, insult, slander, to assist in the implementation of framed or take revenge.

To interfere with the lawsuit, the people's court has the power to take coercive measures to exclude. To exclude compulsive measures to prevent acts of administrative litigation include: reprimand, ordered to make a statement of repentance, penalty and judicial detention. Among them, the amount of the fine shall be in 1000 yuan of the following, the number of days in detention for less than 15 days. Serious breach of administrative action constitutes a crime, shall be investigated for criminal responsibility according to law.

　　Over five, cases and judicial suggestions

(a) the transfer of cases

The transfer of cases, is refers to the people's court in the proceedings, their case or case materials in whole or in part, to the relevant department and treatment measures.

In administrative litigation, it is necessary to situations: (1) the people's court finds that a case it has accepted is not under its jurisdiction, the case is transferred to the competent people's court jurisdiction; (2) the people's court in the trial of administrative cases, that the executive officer, the directly responsible personnel in violation of administrative discipline, shall submit the relevant materials to the administrative organ or its superior administrative organ or the supervisory organ, personnel; (3) the people's court in the trial of administrative cases, discovery of the person being punished act constitutes a crime, shall be investigated for criminal responsibility, if the impact on the criminal liability is not the case, should continue the trial will be timely, and crime related materials to the relevant authorities; if the impact on the criminal liability of the case, should suspend litigation, the crime related materials shall be transferred to the relevant authorities, to make the final processing in the relevant authorities, and recovery procedure.

Need to be transferred, the collegial panel shall make a ruling or notice, statement of the case materials views and to reason, and then transferred to the relevant departments and the relevant material.

(two) the judicial suggestions

Judicial suggestions, is refers to the people's court for the exercise of jurisdiction, but does not belong to the jurisdiction court can solve the problem related to the case to the relevant proposals.

Judicial advice litigation rules is a means for effective implementation of the people's court in administrative judgment, ruling. The administrative organ refuses to perform the judgment, ruling, puts forward the judicial proposal to the administrative organ at the next higher level administrative organ or the supervisory organ, the personnel can the people's Court of first instance. Accept the judicial suggestions shall, in accordance with the relevant provisions dealt the processing result, and inform the people's court. This provision makes judicial suggestions to a certain extent, is conducive to the administrative decision, the execution of the ruling.

　　Six, administrative litigation procedure of second instance and its concreteVolume

(a) the Appellate and appeals

1 the concept of the second instance procedure

The procedure of second instance is refers to the people's court at the next higher level in accordance with the law, the parties appeal within the statutory time limit, the lower level people's court has not been effective administrative judgment or ruling for re trial procedure.

The procedure of second instance is according to the appeal of the parties and, it is also called "the appellate procedure"; our country implements two instance system, so the procedure of second instance is also called the "final appeal procedures".

The concept and the conditions of the 2 appeal

Appeal refers to the decision made by the people's Court of first instance of the non effective administrative adjudication, within the statutory time limit statement may petition for appeal, request a higher people's court appeal behavior second trial and withdraw or change the judgment of first instance to administrative cases.

The appeal is a procedural right of the parties to the law, can not be deprived of, also not be restricted. Whether the judgment of first instance is correct, the parties can appeal. As long as to appeal, will inevitably lead to the procedure of second instance.

Parties appeal, shall meet the following conditions: (1) the appellant and appellee must fit. (2) there are laws allow the appeal, administrative decision of first instance that is not valid. (3) the appeal must be filed within the statutory time limit. (4) the appeal must be submitted. (5) the complaint submitted at the same time to pay the litigation costs.

Mention 3 appeals and acceptance

The appeal made by the people's Court of first instance did not accept the referee's parties in the people's court at a higher level within the statutory time limit for appeal the people's court. The people's Court of appeal shall be proposed by the other party, and according to the number of copies made. The parties can appeal directly to the people's Court of second instance, the people's Court of second instance shall within 5 days to appeal to the people's court. The people's court or the people's Court of second instance shall, after receipt of the appeal, in 5 days will be a copy of the appeal petition sent to the other party. The other party received a copy of the appeal petition, should produce a reply within 10 days. The party does not submit a reply, do not affect people's court. The people's court shall, upon receipt of the defence, serve a copy of it on the appellant within 5 days. The people's Court of appeal, after receiving pleadings, shall within 5 days together with the entire case file and evidence, to the people's Court of second instance. Already in the litigation costs, submitted to the.

Withdrawn 4 appeal

Before the second trial court appellate instance to make judgment, appeal people think their appeal reason is not sufficient, or accept the adjudication of first instance, the court of second instance requests to withdraw his appeal to. Withdrawal of appeal shall be submitted for withdrawal. Whether or not to approve the withdrawal of appeal, the court of second instance ruled by. To withdraw an appeal, shall make a ruling by the members of the collegial panel, and the clerk signed and stamped the seal of the court. No withdrawal of Appeal ruling can be expressed by verbal, written record. The people's court shall not permit the withdrawal of appeal cases are: (1) found that administrative organs to the appellant the stress situation or the administrative organ to make concessions to avoid trouble on the appellant made illegal concessions; (2) in the second trial procedure, the administrative organs shall not change the original specific administrative behavior, and appeals for altering the original specific administrative organs Administrative Behavior and applies for the withdrawal of appeal; (3) both parties to appeal, but only one party to withdraw its appeal; (4) the people's court judgment is wrong, should be corrected or remand.

The appeal is withdrawn, the legal consequences: one is the loss of the right of appeal, may not appeal; two is the judgment of first instance immediately taken legal effect; the three is the cost of appeal from the appellant burden.

(two) the appeal case

Characteristics of 1 cases of second instance. With the first trial of second instance has the close relation, but also has its own characteristics: (1) in the trial organization form, all by a collegial panel of judges, members must be 3 or more. (2) had hearings and written proceedings two kind of trial. That the facts are clear, can be written trial. The parties to the facts in dispute, or by the court of second instance the facts that are not clear, it shall hold a hearing. The trial is the principle, written trial is the exception. (3) the court of second instance must not comprehensive review of first instance found clear facts, laws, and regulations applicable is correct, there is no violation of legal procedures, not subject to appeal range limits. At the same time, it should be on the first trial court judges and the specific administrative act is legal to conduct a comprehensive review. (4) in the people's Court of second instance trial, the defendant shall not change the specific administrative act. (5) the people's Court of second instance trial of a case on appeal, can be carried out in the Institute, also can be the case or the trial court is located. The parties claim the administrative compensation in the second period, the people's Court of second instance may conduct mediation; if the mediation fails, shall inform the parties to be prosecuted.

2 the second instance court review of administrative cases. Includes two aspects: (1) the court of second instance trial of administrative cases, as well as to the trial court judge to review the legality, legitimacy and review of the specific administrative act. (2) the court of second instance trial of administrative cases, conduct a comprehensive review of the legality of specific administrative acts being sued, not subject to appeal range limits.

3 the court of second instance trial mode. The following two kinds of circumstances, the court of second instance should trial: first, identification of the original court fact controversial. Two, the court of second instance that the trial court finds that the facts are not clear this condition is obviously.

The omission of the decision problem 4. The judgment of the first instance omit must participate in litigation or claim, the people's Court of second instance shall rescind the original judgment, the remand. The judgment of the first instance omitted administrative compensation claims, the people's Court of second instance shall not think should be compensation, the court shall reject the request for administrative compensation. The judgment of the first instance omitted administrative compensation claims, the people's Court of second instance trial that shall make compensation in accordance with the law, in the confirmation of illegal specific administrative acts being sued at the same time, mediation may be conducted on administrative compensation; if the mediation fails, should be part of administrative compensation remand. The parties claim the administrative compensation in the second period, the people's Court of second instance may conduct mediation; if the mediation fails, shall inform the parties to be prosecuted.

The legal consequences of 5 of the Appellate review. Appellate, which marked the cases into the procedure of second instance. An important legal consequences of appeal, appeal once accepted, in the second trial procedure, the administrative organs shall not change the original specific administrative act.

　　Seven, the judicial trial supervision procedure and the meaning of the specific content

(a) initiate the procedure for trial supervision

The meaning and type 1 procedure for trial supervision

The procedure for trial supervision, is refers to the people's court found that a legally effective judgment, ruling in violation of laws and regulations, in accordance with the law on the procedures of retrial cases.

The procedure for trial supervision is not must go through the procedure, does not have the property of the trial grade, is a kind of supervision inspection outside a court of first instance procedure of second instance, the case handling quality has.

The procedure for trial supervision procedure and trial procedure includes two procedures: (1) the retrial procedure, the people's court to correct a legally effective judgment, ruling in accordance with the procedure for trial supervision error, once more to the case trial activities. Retrial is divided into two kinds: one is self retrial; two is the direct retrial. (2) reviewing procedure, namely the superior people's court in accordance with the procedure for trial supervision of administrative cases has been in force for the lower class people's court trial activities.

The relationship between 2 trial supervision procedure and trial procedure

The trial supervision procedure and trial procedure both have in common, but there are differences. The common point is, is to the people's court has made a judgment as the foundation, is to supervise the trial work of the people's courts, the procedures to ensure the quality of handling cases.

The difference is: (1) filed in different subjects. Subject to institute the trial supervision procedures must be explicitly stipulated in the law of the people's courts at all levels and the people's court, the Supreme People's court and the people's procuratorates at all levels. And the procedure of second instance is entitled to the right of appeal of the parties appeal caused by. (2) filed under different conditions. Only to find an effective verdict, ruling in violation of laws and regulations, to initiate the procedure for trial supervision; and if the party refuses to accept a trial without effective judgment, ruling or judgment, ruling, whether or not in violation of laws and regulations, to bring the second instance procedure within the statutory time limit. (3) there is no time limit for different. The trial supervision procedures in decision, ruled that any time after the entry into force of the inner may bring; and the second instance procedure can only be raised in legal appeal period. (4) the trial in different subjects. Cases of administrative adjudication supervision procedure, which can be handled by the people's court, also can be heard by a superior people's court to the people's court; and the application of administrative cases of the second instance procedure, can only be heard by the people's Court of first instance of a higher court. (5) the trial object. Application of the procedure for trial supervision of the trial is an effective verdict, ruling; and apply the procedure of second instance is the first trial decision, ruling has not yet entered into force. (6) the nature of the process different. The procedure for trial supervision is to correct people's court verdicts, ruled that the mistake is a kind of special program, does not have the trial level properties, is a kind of supervision and remedy to the people's court; and the second instance procedure is set up according to the two instance trial level system, the administrative case of first instance to continue the trial.

Reason 3 trial supervision procedure

Why mention the procedure for trial supervision is an effective verdict, ruling that "violate provisions of laws, rules and regulations". Any of the following circumstances, which belongs to the "violation of laws, regulations": (1) the original judgment, ruling that the main evidence is insufficient; (2) the original decision, ruled that the applicable laws, regulations is wrong; (3) in violation of legal procedures, may affect the proper decision of the case; (4) other acts in violation of any law, regulation the case.

The procedure for trial supervision procedure 4

Because the subject in the trial supervision procedures are different, apply the following three instituted procedures: (1) the president of the people's court through judicial committee decides the retrial; (2) the superior people's court for retrial or instruction; (3) the people's procuratorate.

(two) the retrial procedure

The retrial procedure is:

The 1 rule to suspend the execution of the original judgment.

2 to form a collegial panel.

The first 3 are used, the procedure of second instance.

The people's Court of second instance and retrial cases, the people's court, the acceptance shall be rejected or dismissed the prosecution wrong, each case should be treated as follows: (1) the people's Court of first instance made substantive judgment, the people's Court of second instance that should not be accepted, the people's Court of first instance verdict revoked at the same time, you can size for the prosecution dismissed; (2) the people's Court of second instance to maintain the people's Court of first instance shall not accept the decision error, the court of retrial shall withdraw the first instance, the people's Court of second instance court of first instance, the people's court accepts instructions; (3) the people's Court of second instance to maintain the people's Court of first instance ruled that the prosecution dismissed the error, the court of retrial shall revocation of the first instance, the people's Court of second instance court of first instance in the people's court, instruction.

The people's Court of retrial cases, found the effective judgment in any of the following circumstances, shall make a ruling to the people's court remanded judgment, ruling retrial: (1) the trial judge, the court clerk shall avoid but not inevitable; (2) shall open a court session is without judgment according to law; (3) without lawful to summon the litigants and the default judgment; (4) the omission to parties; (5) court failed to decide on claims related to the case; (6) other violation of legal procedure may affect the proper decision of the case.

The twenty-sixth chapter special system and rules of administrative litigation

Learning focus problem

　　The concept and types, administrative litigation evidence

(a) the concept of administrative litigation evidence

Evidence refers to all the materials and facts to prove the facts of the case.

True and reliable evidence is courts according to. This part is called "the evidence evidence". But the evidence has three characteristics: (1) the objectivity; (2) the correlation; (3) the legitimacy.

Administrative litigation evidence refers to the administrative proceedings to prove that all materials and the facts in the facts of the case.

Determined by the nature of administrative proceedings, the evidence system has the following characteristics: (1) the final fact evidence in administrative litigation is to show how the specific administrative act is legal. (2 case) administrative defendant must bear from first to last that specific administrative acts being sued legitimate legal burden of proof. (3) the defendant in administrative litigation in the course of legal proceedings, the plaintiff shall not ask the witnesses and evidence collection, as the agent of the law shall not collect evidence from the plaintiff and witnesses. (4) the people's court has the collection of evidence in administrative litigation rights, and no collection of proof obligations, its main task is to examine and judge evidence.

(two) the legal category of evidence in administrative litigation

According to different standards of evidence can be divided into direct and indirect evidence, the original evidence and evidence passed, the main evidence and secondary evidence, oral evidence and physical evidence, the card and the reduction to absurdity.

"Administrative procedure law" according to the sources of evidence and form of expression, which is divided into the following seven categories:

1, documentary evidence. Written material is thinking or behavior is expressed by text, symbols, patterns and contents recorded with the facts of the case about the people. If the administrative organ, documents, correspondence, handling decision. Normative documents as the administrative organ that has made the specific administrative act on the basis of, is the administrative organ must be submitted in the proceedings of the documentary evidence.

2, evidence. The article traces, such objective substance appearance, character, texture, specifications and other proof of the facts of the case evidence. As the traffic tool, leaving the scene of objects and traces.

3, audio-visual materials. In recording, video recording, scanning techniques, voice, image and data into physical signal carrier on the various records, to prove the facts of the case evidence. Such as audio and video tapes, computer data and information.

4, the testimony of a witness. That is directly or indirectly know the circumstances of the case to the people's court as witnesses to prove the statement of the case facts. In general, presented the testimony of witnesses should appear, but if there are difficulties can not appear in court, the people's court, submit a written testimony. To adapt to the mental patient, juveniles testifying should its degree of mental health, mental maturity phase.

5, the statements of the parties. That is a party to the case in the proceedings of the facts of the case to the people's court statements and admit.

6, the appraisal conclusion. Identification of the person that has the professional and technical expertise of the use of specialized instruments, equipment, technical conclusions on specific issues relating to the case for. According to the identification of the different objects, can be divided into medical identification, identification, identification documents, accounting identification, chemical identification, physical identification.

7, investigation transcripts, transcripts of the scene. Records of inspection refers to the investigation, inspection, measuring, drawing, photographing the record on the site related to administrative cases or goods administrative organ or the personnel of judicial personnel of people's courts. Transcripts of the scene refers to the written record of the functionaries of the administrative organ in the administrative process of field related to administrative cases and its treatment.

　　The basic concept and principle of burden of proof in two, sharing the burden of proof

The burden of proof is a consequence of the legal assumption, in particular to assume the responsibility of the parties must stand on its own name the main facts, to prove that it does exist, otherwise it will bear the consequences of losing.

The burden of proof system is the core content of the evidence system of administrative litigation.

The burden of proof law refers to when the court can not find out the facts of the case, should be sentenced by the who will bear the consequences of losing. According to China's "administrative procedure law" regulation, the basic principles of administrative proceedings the burden of proof is: the share of burden of proof for the specific administrative act of. The specific administrative act is legal or not is the key problem of administrative cases, when the defendant cannot prove that the specific administrative act, will bear the consequences of losing, and the plaintiff not because of illegal evidence not cite a specific administrative act and lost.

The defendant of administrative litigation evidence collection shall comply with the following rules:

1 in the course of legal proceedings, the defendant shall not collect evidence from the plaintiff and witnesses. As the litigation representative lawyer, also cannot self forensics.

The legal situation of 2 administrative organs can be collected, provide evidence in the litigation process. Mainly include the following: (1) the defendant had collected evidence in making the specific administrative act, but due to force majeure and other legitimate reasons can not provide; (2) the plaintiff or the third party in the litigation, and put forward the implementation of administrative behavior in the process did not refute the reasons or evidence.

The defendant shall bear the burden of proof for the specific administrative act to make, but it does not mean that the plaintiff does not bear any burden of proof in administrative litigation. The plaintiff shall bear the burden of proof for the following items: (1) proved to sue in conformity with the statutory conditions, except that the defendant argues that the plaintiff surpasses the prosecution; (2) in the prosecution of the defendant not as a case, the facts prove its application; (3) in the administrative compensation lawsuit filed in together, that losses caused by by the acts of the facts; (4) other matters which the plaintiff shall bear the burden of proof.

　　Three, the basic rules of evidence in administrative litigation

(a) to provide evidence for

All kinds of evidence provided by the parties to the court, only to comply with the statutory requirements will have effect. According to the judicial interpretation of the provisions, provide specific requirements of all kinds of evidence are as follows:

The 1 documentary evidence. The parties to the people's court to provide documentary evidence, unless the laws, regulations, judicial interpretation and regulations for documentary making otherwise provides, shall meet the following requirements: (1) principle should provide documentary evidence of the original, the original there are difficulties, can provide with the original check copy, photos, excerpt without error this. In accordance with the provisions of the original, original and copy, belong to the originals of documentary evidence. (2) to provide the original documents are kept by the relevant departments of the copies, photocopies or excerptions, shall indicate the publication, by the Department concerned after verification shall affix its seal. (3) the parties to provide reports, drawings, technical documents, accounting books, documentary literature of science and technology and so on, should be accompanied by explanatory materials. (4) on the basis of the defendant to provide the specific administrative acts being sued to ask, Chen Shu, the conversation class notes, should have the administrative enforcement personnel, the person being interrogated, Chen Shuren, talks and signed or sealed. The parties to provide foreign documentary evidence to the people's court shall be accompanied by a translation, translation quality institutions or other translation accurate Chinese versions, and the translation mechanism seal or signature of the translator.

2 evidence. The parties to provide evidence to the people's court shall provide the original articles, in principle, to provide the original there are difficulties, can provide and the original certified copy or proof of the evidence photos, videos and other evidence; if the original is the species quantity, when a part of thing people should provide the.

3 audio-visual materials. The parties to the people's court for computer data or audio-visual materials,, shall meet the following requirements: (1) the parties should be the original carrier provide relevant information to the court, in the original there are difficulties, can provide copies; (2) the parties shall specify the production methods, production time, producers and the object of proof; (3) the sound materials shall be accompanied by the sound content written records. For the parties to provide to the people's court foreign language audio-visual materials, the parties should be accompanied by a translation qualification body translation or other translation accurate Chinese versions, and the translation mechanism seal or signature of the translator.

The 4 witness testimony. The parties concerned to provide the testimony of a witness to the people's court shall meet the following requirements: (1) the basic situations as witness's name, age and sex, occupation, address, etc.. (2) must have the signature of the witness. If the witness is not signed, shall be stamped proof. (3) the witness testimony should be marked by date. (4) shall be accompanied by a copy of identity card to prove that the witness identity documents.

5 identification conclusion. Identification of the conclusions adopted in the administrative procedure of the administrative organ to provide to the people's court shall meet the following conditions: (1) shall indicate the trustee and the authentication matter; (2) the relevant materials should be submitted to the appraising department; (3) basis and use should be identified by means of science and technology; (4) should be an authentication department and expert appraisal qualifications; (5) stamped signature and identification of departments should be identified. For the identification of the conclusions obtained by analysis, should also indicate the analysis process.

6 transcripts of the scene. Transcripts of the scene the administrative organ to provide to the people's court, in addition to production in the form of law, regulations and rules on the transcripts of the scene has special provisions, the general should contain make on-site records the time, place and event, and by the executive and the signatures of the parties. Where a party refuses to sign or not to sign, it shall be indicated. There are other people at the scene, may be signed by other people.

(two) to collect and preserve evidence

In the course of legal proceedings, the burden of the parties, if the parties to provide evidence, the people's court shall have the right to request additional evidence. But in special circumstances, the people's court may in accordance with the terms of reference to the relevant administrative departments and other organizations, citizens to obtain evidence. Required by the people's court evidence collection and investigation, mainly has two kinds: one is the plaintiff or the third party and agent ad litem, provides evidence, but cannot be collected and apply to the people's court to obtain evidence; the two is the parties shall provide and fail to provide the original or raw material.

The basic way to the people's court to investigate and collect evidence of inquiry, obtaining the relevant materials, submit the identification and inspection.

Preservation of evidence is refers to the people's court may be lost or difficult to obtain later evidence in the case, take a action, drawing, photographing, recording the record, recording, extraction and keeping the relevant evidence and other measures to make the value of evidence preserved. In two cases, the people's court for preservation of evidence: (1) the evidence may be lost. (2) after the hard evidence.

The people's court may according to the authority or the parties apply for preservation of the evidence, and take corresponding preservation measures according to the attributes of the evidence.

(three) evidence of identification and verification

Evidence identification and verification of confrontation, is refers to under the auspices of a judge, where a relevant evidence to identify and confrontation, proof on the authenticity of the evidence, relevance and legitimacy and the evidence and proof force debate activities.

Evidence identification and verification is an important part of his review of the evidence.

In principle, all the evidence shall be presented in court, and the trial process, can be used as a basis for a final decision, even the people's court to obtain evidence. But the parties in the pretrial exchange of evidence in the process without controversy and recorded in the volume of evidence by judges in the trial after that, can be used as the basis that the facts of the case.

On the evidence of confrontation and the recognition process, the court's permission, the parties and their agents can evidence question each other, also can be to the witness, expert or examination questions.

(four) the evidence confirmation

The meaning and content of the 1 evidence cognizance. Evidence for verification, refers to the judges in the parties to listen to that, on the evidence of the confrontation and identification, adoption of evidence or not recognized. Evidence for verification of the content is: (1) the authenticity of audit evidence. (2) the examination and determination of the relevance of evidence. (3) the legitimacy audit evidence.

2 not as the verdict according to the evidence. The following evidence cannot as yet based on: (1) a serious breach of statutory procedures for collection of evidence. (2) the evidence material to candid camera, recording, wiretapping and other means to obtain infringes upon the lawful rights and interests of the. (3) as inducement, fraud, coercion, evidence obtaining violence and other improper means. (4) the party goes beyond the evidence forensics period provided, including the plaintiff, the defendant. (5) outside the people's Republic of China or in the Hong Kong and Macao formed without legal proof procedures for materials. (6) a party concerned refuses to provide the original, the original, and no other evidence, copy and not acknowledged by the other party evidence or copy. (7) by the parties or other people did the technical processing and unable to discern the truth. (8) can not correctly express the will of the testimony of witnesses. (9) in violation of legal prohibitions or infringes the lawful rights and interests of others and obtain evidence. (10) does not have the legitimacy and other evidence material authenticity.

3 can not be identified as the specific administrative acts being sued legitimate evidence. The following evidence cannot be identified as the specific administrative acts being sued legitimate basis for: (1) the defendant and the plaintiff in a specific administrative act or collection of self in the proceedings of evidence; (2) the defendant in administrative procedure illegal deprivation of citizens, legal persons or other organizations shall enjoy the statements, defenses or the right to hearing the evidence; (3) the plaintiff or the third party provide in the procedure, the defendant in administrative procedure is not a specific administrative act on the basis of evidence; (4) the reconsideration organ collected in the review process and additional evidence, or make the original specific administrative act in the review process did not submit to the administrative organ for reconsideration evidence.

Size effect 4 evidence judgment. In the review of the evidence in the process, if found evidence that the same fact, the proof of effectiveness can generally be identified according to the following circumstances: (1) state organs and other functional departments in accordance with the terms of the official documents produced better than other documentary evidence; (2) authentication conclusion, on-site records, records of inspection, file materials and notarized or superior to other documentary evidence, documentary evidence of registration of audio-visual materials and the testimony of witnesses; (3), the original is better than original copies, copies; (4) the identification conclusion legal corroboratory department appraisal conclusion is better than other corroboratory department; (5) the court presided over the production records of inspection is superior to other department presided over the investigation of the production records of inspection; (6) to pass the original evidence is evidence; (7) the relatives or other related parties other than the testimony of witnesses and witness provided favorable to the party concerned testimony; (8) to testify in court testimony of witnesses to testify in court is not the testimony of witnesses; (9) the number of species different contents, consistent evidence is better than that of an isolated evidence.

　　Four, administrative litigation legal meaning and the applicable rules

(a) the application of administrative litigation law meaning and applicable rules

The application of administrative litigation law, refers to the people's court in accordance with the legal procedures, laws, and regulations will be applied to all kinds of administrative cases, special events and to review the legality of administrative organs of the specific administrative act.

Application of administrative litigation laws mainly solves the legitimacy of the people's Court of the specific administrative act standards of judgment, the people's court legitimacy is by any standard, based on which the legal norms to examine the specific administrative act, to judge the legitimacy and of the specific administrative act.

China's administrative law norm setting of multi subject, administrative law, the effectiveness is not a grade, the norms of the administrative law belongs to the administrative litigation law is applicable object of the people's courts, the people's court to their binding and potency of the applicable law, is the key to solve the problem of administrative litigation.

According to the provisions of China's administrative procedure law, the people's court in the administrative litigation law should follow the following rules:

1 laws and regulations, administrative trial basis. Administrative trial basis is refers to the people's Court concerning the trial of administrative cases, examine and judge the legality of specific administrative act and the standards. Our country's administrative trial is based on laws and regulations. Here the "laws and regulations," including law, administrative regulations, local regulations, autonomous regulations and separate regulations.

2 refer to applicable rules. The rules include administrative rules and local government regulations two. Regulations in the people's court administrative cases in the reference position. The so-called reference, is refers to the people's court in the trial of administrative cases, and identification of rules to be applied to consider, in accordance with the provisions of laws, administrative regulations and rules, as a review of the specific administrative act is legal or not according to; do not conform to the full compliance with laws, regulations, rules and the original spirit, the people's court has the flexible processing room, can not apply.

The status of the 3 other normative documents in administrative litigation. Generally speaking, the scope of other normative file does not belong to the law, not binding on the court. The people's court may reference other normative documents in administrative trial, but the legitimacy of the more strict confirmation. When a conflict occurs, the people's court shall not send relevant agency adjudications, can be directly determines the applicable or not.

4 people's Court on the judicial interpretation of the quoted. The judicial interpretation is given by the Supreme People's Court on the law application in the trial of the problem of interpretation. The people's court in the trial of administrative cases, the application of the Supreme People's Court judicial interpretation, should be cited in the judgment.

(two) application of administrative litigation laws conflict rules

The legitimacy of the people's court in the review of the specific administrative act, in addition to according to the facts, but also according to the corresponding legal standard to judge. In the process of application of legal norms, sometimes at the same time, there are several laws and regulations are applicable to the specific administrative act, and between several legal norms is inconsistent case, this is the administrative litigation law conflict.

In the administrative litigation law conflict situations, it is more important rules. The administrative litigation law conflict rules, is legitimacy refers to the people's court in the review of the specific administrative act, the approach taken to solve the conflict of law and rules, which determines the choice of application of administrative legal documents relevant or specific administrative legal provisions.

Application of administrative litigation laws conflict rules mainly have the following several kinds:

1, special conflict rules. The regulations that special law and common law appear inconsistent case, provisions shall generally be the priority of special law applicable.

Rules 2, different levels of conflict. Conflict with each other in the administrative law of different rank of validity of administrative legal norms, should choose higher levels of legal norms applicable effect, high levels of legal norms is better than the lower level.

3, the conflict rules. In the development of organ and effectiveness of different conflicts between administrative law level on the same case, the Supreme People's court shall send to the State Council forinterpretation or ruling.

4, the old and the new law conflict rules. Inconsistent provisions of administrative legal norms of the old and the new administration law, applicable rules is the two principle of the new law is better than the old method and the law of non retroactivity.

5, the interpersonal conflict rules. Different ethnic, racial or special person, legal documents or standard special provisions apply to national, ethnic or special person to make the.

6, interregional conflict rules. In different administrative areas of administrative law for the conflict, shall apply to the administrative legal norms of administrative region.

(three) application of WTO rules

1, in general, the WTO rule can't be directly applicable in administrative litigation in our country, it is only applicable force indirectly. However, if the specific provisions of laws, administrative rules and regulations relating to appear WTO rules applicable to administrative cases between reasonable explanation is more than two, should follow the same principle of interpretation, namely except China has declared reservation provisions, the people's court shall choose the WTO rules and regulations consistent interpretation.

2, under special circumstances, the WTO rule can be applied directly in administrative litigation. This special case is that, in the administrative regulations, departmental rules or other central government measures in the commitment period of time can not be in place, the competent authority may be quoted directly WTO rules.

　　Several special system, administrative cases in five

(a) withdrawal

Withdrawal, refers to the plaintiff in the people's court to declare a judgment or ruling, in accordance with the procedures prescribed by law, to give up the lawsuit right of action.

After the people's court approved the withdrawal will result in the termination of litigation.

The withdrawal is divided into two types:

1 apply for withdrawal. Applies for withdrawal of the case that the plaintiff voluntarily give up the right to sue behavior.

2 as the application for withdrawal or withdrawal presumed. Includes three types: one is by the people's court at two times the legal subpoena, the plaintiff refuses to appear in court without justified reasons; two is in the trial period, the plaintiff midway without permission by the court adjourned, refuses to return; three is the plaintiff in the statutory period has not paid the cost of litigation, and does not raise the postponement of the litigation costs the application of the.

Withdrawal must be approved by the people's court. Under normal circumstances the people's court shall permit. However, when the plaintiff withdraw may lead to unable to judicial review of specific administrative acts, damage the interests of the state, the collective interests or the society, the people's court shall order the withdrawal of the case is not allowed; the plaintiff refuses to appear in court, the people's court may make a judgment by default.

(two) the default judgment

Default judgment, is refers to the collegiate bench trial, in the absence, after the trial judgment.

Default judgment applies to the following three cases: (1) the people's court at two times the legal summons, the defendant refuses to appear in court without justified reasons; (2) the defendant while to take part in the proceedings, but midway without permission by the court of the court; (3) the plaintiff applies for withdrawal of the case, the people's court shall not be permitted, the plaintiff by legal subpoena, refuses to appear in court or retreat during court session without permission. Third people legally subpoena refuses to do so without justified reason, or midway without permission by the court adjourned, does not affect the trial of the case.

(three) the property preservation and execution

The people's court due to activities of one party or other reasons, may make the specific administrative act or the people's court is unable or difficult to perform case, can make the preservation of property according to the request of the other party's ruling; does not make such an application, the people's court shall actively adopt property preservation measures when necessary.

(four) proceedings of the extension resistance

Proceedings of the extension resistance, is due to certain reasons, the litigation process interrupt or not according to the normal procedure of the trial and adjudication.

In administrative litigation, Proceedings of the extension resistance situation mainly have the following several kinds:

1 deferment of trial. The people's court in the trial or the trial process, due to special circumstances, so can not according to the predetermined time trial, and the trial time delay.

To adjourn the trial include: (1) by the administrative authority to change the specific administrative act; (2) was essential to the parties and other participants in the proceedings did not appear in court; (3) the application of a party concerned can not avoid the trial; (4) need to summon new witnesses, collect new evidence, re identification, an inquest or additional evidence is needed; (5) for the members of the collegial panel temporary emergency task or special, unforeseen circumstances not to appear in court without replacement; (6) other needs the adjournment of trial.

2 to extend the time limit. The people's courts in handling administrative cases, due to special circumstances can not be in the trial period case, the higher people's court or approved by the Supreme People's court and the extension of time limit for trial action.

According to the provisions of the administrative procedure law, the court shall be the date of initiation in the judgment of first instance within 3 months; appeals shall make a final judgment within 2 months. If extension is needed, approved by a higher people's court; the Supreme People's court needs to be extended, approved by the Supreme People's court. The trial period refers to the period from the date of filing to the announcement date, time identification, processing jurisdictional disputes or dissent and discontinue the action doesn't count.

The 3 suspension of litigation. In the litigation process, due to the occurrence of some insurmountable and difficult to avoid the special circumstances, the people's court ruled to temporarily stop the proceedings.

In administrative proceedings, in any of the following circumstances, suspension of action: (1) the plaintiff dies, must wait for their close relatives to indicate whether to participate in the proceedings; (2) the plaintiff lost the capacity to engage in litigation, legal representative is yet to be determined; (3) as the administrative litigation of one of the parties, the legal person or other organization is terminated, not yet determined the successor to its rights and obligations; (4) a party for irresistible reasons, can not participate in the proceedings; (5) cases involving legal problems, need to send the right organs interpretation or confirmation; (6) the case trial shall be the civil, criminal or administrative the trial of the case as the basis, and the case has not yet concluded; (7) other circumstances shall suspend the litigation. Suspension of litigation by the people's court for a ruling, the parties accept the, shall not apply for reconsideration or appeal.

4 the termination of litigation. In the litigation process, due to the lawsuit cannot continue and cannot be recovered or proceed with the case has no practical significance, the people's court shall end the ongoing proceedings.

Lead to termination of litigation cases have the following two categories: (1) procedure to have no practical significance. If the complainant to withdraw, the court agreed to, can end the lawsuit. (2) proceedings cannot continue. If the plaintiff dies, no close relatives or relatives give up litigation rights; as the legal person or other organization after the termination of the rights and obligations, people give up litigation rights. In addition, the resulting suspension of action first, two or three reasons in order to discontinue the action, in full 90 days no one to litigation, end, except in special circumstances.

Termination of litigation, the parties shall be based on the same facts and reasons to suit.

(five) processing the defendant to change specific administrative act in the trial period

In the process of administrative proceedings, the defendant found themselves made the specific administrative act improper or incorrect, allowing it to change according to the corresponding legal procedures. But the specific administrative act of the defendant after the new change is not served to the parties from the date of its entry into force, there are two conditions: one is the plaintiff agrees and applies for the withdrawal of the suit to the people's court; the two is the people's court ruled to approve the withdrawal.

The defendant to change specific administrative act during the trial of the first instance, in addition to inform the plaintiff, it shall inform the people's court in writing. The change of the original specific administrative act, the plaintiff did not withdraw, the people's court review of that violate the original specific administrative act, should be made to confirm the illegal judgment; that of the original specific administrative act, the court shall reject the plaintiff's claim. The plaintiff sued the defendant not as, in cases in which the defendants made the specific administrative act, the plaintiff did not withdraw, treatment with reference to the provisions of.

In the second trial procedure, appeals to people as a result of the administrative organ to change its specific administrative act and requests to withdraw his appeal, the people's court shall not be allowed.

(six) the specific administrative act to stop the implementation problem

On the relationship between the prosecution and the specific administrative act, administrative litigation prosecute does not stop the implementation of the principle of. But one of the following circumstances, to stop the execution of the specific administrative act: (1) the defendant that the need to stop the execution; (2) the plaintiff applies to stop the execution, the people's court that the execution of the specific administrative act will cause irreparable damage, and the suspension of the execution will not harm the public interest, order the suspension of the execution; (3) the need to stop the implementation of the provisions of the laws, rules and regulations.

Executive prosecution does not stop principle applies only to administrative enforcement powers and is able to enforce its specific administrative behavior, does not apply to administrative organs shall apply to the people's court for enforcement of its specific administrative act cases. In the course of legal proceedings, the defendant or the specific administrative act to determine the right people apply to court for enforcement of the sued specific administrative action, the people's court shall not perform, not only in the timely implementation may give national interests, public interests or the legitimate interests of others can not compensate for the loss caused by the people's court, can advance execution.

(seven) the merger trial

In some cases the court proceedings, the main purpose is to litigation economy.

In administrative litigation, court may adjudicate cases are: (1) the administrative organs of more than two respectively according to different laws or regulations, on the same fact made the specific administrative act, the citizen, legal person or other organization refuses to accept the prosecution to the same people's court; (2) the administrative organ on the same facts on a number of citizens, the legal person or other organization refuses to accept the prosecution to are the same people's court; (3) in the course of legal proceedings, the defendant has made the specific administrative act of the plaintiff refuses to accept the new, the plaintiff to sue in the same people's court; (4) the people's court may in other circumstances the merger trial.

(eight) the administrative litigation with incidental civil action

The administrative litigation plaintiff held that the defendant to the civil dispute between subjects of equal status as a verdict of unlawful administrative litigation, and request the people's court resolved related civil disputes, the people's court may also hear. But the parties to civil cases the parties if one party does not agree with the court hearing, should not be tried.

The application of administrative litigation with incidental civil action conditions are as follows: (1) the specific administrative act is the principal of equality between civil disputes by administrative adjudication. (2) in the administrative adjudication is illegal, the court could adjudicate. (3) the parties request the court to solve civil disputes related civil disputes.

　　The concept and characteristics of six, foreign administrative litigation

Foreign administrative action, is the procedure for acceptance, trial and enforcement of administrative cases involving foreign elements in the people's court.

Foreign factors refers to the administrative plaintiffs in the case, the third party or executed are foreign nationals, stateless persons or foreign organization. Chinese foreign equity joint ventures, Chinese foreign cooperative enterprises and established within Chinese territory in accordance with the law of the people's Republic of foreign-funded enterprises are not belong to foreign organizations.

Foreign administrative action can be divided into two categories: one is the people's Republic of China court and administrative cases after the trial made; two is the foreign court judgments to be performed within the territory of the people's Republic of China, the people's Republic of China according to the treaty or agreement with the court, ruled the way the recognition of foreign judgments, and administrative case execution.

Foreign administrative action has its particularity, mainly manifests in the:

1, foreign body. Because only the defendant in administrative litigation of our country administrative organ or organization authorized by the laws, regulations, so only the administrative litigation plaintiff and third people in at least one party is a foreigner or foreign organization, can form the foreign administrative action. The party is the Hong Kong and Macao residents and organizations and administrative litigation does not belong to the administrative procedure involving foreign interests, just considering the particularity of the three places, in administrative proceedings dealing with specific problems may refer to the provisions on foreign administrative litigation.

2, administrative litigation specific locations. Includes two cases: one is the specific administrative act must have occurred in China in the field, processed by our national administrative organ or organization authorized by the laws, rules and regulations; two is the foreign parties in our people's court administrative proceedings or join in our court in administrative lawsuit.

3, the particularity of the principle and system. Administrative procedure involving foreign interests have many characteristics different from general administrative litigation in principle and system, administrative procedure law of our country has made detailed provisions.

　　Seven, foreign administrative litigation principle

General principles of administrative procedure involving foreign interests is the basic principle that the people's courts shall foreigners, mainly including the following principles:

1 the principle of equality. Also known as the "national treatment", refers to the foreigners, stateless persons, foreign organizations that are engaged in administrative litigation in China, enjoy civil and our country the same litigation rights and obligations are the same litigation. This is a concrete manifestation of the principle of equality in administrative litigation in the country.

2 the principle of reciprocity. Also called "reciprocity", is refers to the country between the treated each other citizens, organizational status and rights in litigation between equivalence. "Reciprocal" includes two aspects: (1) the positive aspects of equivalence. Foreign citizens, organizations and citizens shall enjoy the same rights, organization, bear the same legal obligations, without discrimination and restrictions. (2) the negative aspects of equivalence. The foreign court if the right of appeal to the citizens, organizations should be limited, its courts also take corresponding measures for foreign citizens, organization litigation rights restrictions. The equivalence principle is the inevitable requirement of the sovereign equality of States and maintain national sovereign dignity, is conducive to promoting real equality and mutual benefit in the judicial activities.

　　For eight, foreign administrative litigation law

In the international treaties concluded or acceded to by China are different from the provisions and administrative litigation law, international treaty shall apply, except China has declared reservation clause.

The twenty-seventh chapter and the execution of administrative cases

Learning focus problem

　　One, administrative litigation judgment the meaning, characteristics and types

The administrative decision is refers to the people's court according to the facts, in accordance with laws, regulations, according to rules, entity ref the legality of concrete administrative behavior made.

Administrative litigation judgment is the people's court to exercise judicial power, embodies the supervision on administrative behavior of the administrative organ, the people's court, is the basic means of dispute resolution, form is also the people's courts shall participate in the proceedings and the results.

Administrative litigation judgment in accordance with the audit criteria can be divided into a trial, appellate court and re trial:

(a) the first trial in administrative litigation

The people's Court of first instance after the trial, according to different circumstances can make five types of judgment, namely the maintenance decision, the cancellation decision, a judgment for performance, alteration of judgment, the confirmation decision:

1 the maintenance decision. The people's court after hearing, that specific administrative acts being sued irrefutable evidence, correct application of laws and regulations, in accordance with legal procedures, to maintain the sued specific administrative behavior decision.

The specific administrative act must have the following three conditions, the people's court to make maintenance decision: one is the irrefutable evidence, namely that specific administrative acts being sued the fact, have sufficient evidence to prove its existence. Two is the correct application of laws and regulations, which is the applicable legal regulations and specific provisions stipulated payment, and processing properties, forms and procedures in accordance with laws and regulations. Three is in accordance with the legal procedures, namely in the laws and regulations clearly stipulates the implementation of the specific administrative act of the program, to make the specific administrative act shall strictly follow the statutory procedures.

2 revocation decision. The people's court after a review of negative specific administrative acts being sued judgment. Revocation decision divided into judgment, judgment and cancel all partial revocation decision to withdraw and enjoin the defendant to undertake a specific administrative act in three cases.

The specific administrative act in any of the following circumstances, the people's court shall make a judgment for repeal: (1) the main evidence. (2) applicable laws and regulations. (3) in violation of the statutory procedures. (4) beyond the terms. 5 breach of privilege.

3 deadline for execution of judgment. The people's court after the administrative case, defendant can not perform or delays the performance of his statutory duties, to require the defendant to perform its statutory duties within a certain period of judgment.

This decision shall apply to the following conditions: (1) conform to the statutory conditions, to the defendant for the issuance of the permit or license, the defendant refused to issue or not to reply. (2) the defendant failed to grant pension, minimum living expenses and social insurance. (3) apply for the administrative organ to protect personal rights, property rights, legal responsibility, the defendant refuses to perform or fails to respond to the.

The people's court to make a judgment for performance, should meet the following conditions: (1) the defendant has to fulfil their duty to the administrative relative person according to law. (2) shall be put forward to apply for the plaintiff to the defendant, the defendant refuses to perform, delaying the implementation of behavior, or to ignore the request, make no reply. (3) the plaintiff to the defendant to apply, should comply with the statutory conditions. (4) the people's court decision defendant shall perform their statutory duties, clearly pointed out the duties of the content and the time limit for performance.

The 4 change decision. In the administrative sanction is obviously unfair, the people's court to change the specific administrative act of judgment.

The judgment of the court to change specific administrative acts being sued, must have two conditions: one is the specific administrative act to implement administrative punishments; two is the administrative sanction is obviously unfair. The so-called "injustice", refers to the legal and moral cognition level is usually per capita could be found and confirmed the punishment clearly lost the justice of the law.

5 the confirmation decision. The people's court through the review of specific administrative act, the corresponding legal or illegal behavior recognition.

Any of the following circumstances, the people's court shall make a confirmation of the specific administrative act as illegal or invalid judgments: (1) the defendant did not perform their statutory duties, but the decision to perform their statutory duties has no practical meaning; (2) the illegal specific administrative acts being sued, but has not the content to be revoked; (3) the defendant the specific administrative action has not formed or invalid; (4) the illegal specific administrative acts being sued, but the revocation of the specific administrative act will give the national interests or the public interests, resulting in serious losses, the people's court shall make a confirmation of the specific administrative act as illegal decision, and ordered the sued administrative organs to take appropriate remedial measures; damage the decision, shall bear the liability for compensation according to law.

(two) the second instance verdict

The people's Court of second instance trial appeal administrative cases, according to the different situation, can make the maintenance decision and judgment shall be amended according to the two types of judgment:

1 the maintenance decision. The people's Court of second instance the appeal case, confirm the court finds that the facts are clear, correct application of laws and regulations, to deny and reject the appeal the appellant, maintenance of first instance judgment.

2 shall be amended according to the law. The people's Court of second instance the appeal case, confirm the court finds that the facts are clear, but the erroneous application of the law or regulations, or make sure that the court finds that the facts are not clear, the evidence is insufficient and the violation of legal procedure may affect the correct judgment of the case, on finding out the facts after legally changed a judgment.

The people's Court of second instance trial of a case on appeal needs to be revised, it shall revoke the decision of part or all of the content, and in accordance with the law ruling upheld, revoke or change the specific administrative act.

(three) if the second judgment

The people's court rehearing judgment is made in accordance with the procedure for trial supervision of adjudication.

If the second judgment and ruling shall be conducted in accordance with the following rules apply:

1, the people's court after the trial that the original judgment facts and application of law are all at the time, shall make a ruling to revoke the suspension of execution order, continue to implement the original judgment.

2, the people's Court of second instance and retrial cases on the case, the court shall not accept or reject the prosecution, wrong, each case should be treated as follows: (1) the people's Court of first instance to make specific decisions, the people's Court of second instance that should not be accepted, the people's Court of first instance verdict revoked at the same time, can send back review, can also be directly rejected the prosecution; (2) the people's Court of second instance to maintain the people's Court of first instance shall not accept the decision error, the court of retrial shall withdraw a trial, the people's Court of second instance verdict, the trial court to accept instructions; (3) the people's Court of second instance to maintain the people's Court of first instance ruled that the prosecution dismissed the error, the court of retrial shall the revocation of a trial, the people's Court of second instance verdict, the trial court trial instruction.

3, the people's Court of retrial cases, found the effective judgment in any of the following circumstances, shall make a ruling to the people's court remanded judgment, ruling retrial: (1) the trial judge, the court clerk shall avoid but not inevitable; (2) it shall hold a hearing without the court that ruled according to law; (3) without lawful to summon the litigants and the default judgment; (4) the omission to parties; (5) court failed to decide on claims related to the case; (6) other violation of legal procedure may affect the proper decision of the case.

4, the people's Court of retrial cases, that the original effective judgment, ruling is wrong, in the revocation of the original judgment or ruling at the same time, can make the judgment to the effective judgment, ruling, or it may rescind the effective judgment or ruling made people, back court verdicts, ruled that the re trial.

Then the trial effect will, decision depends on the retrial of the people's court in accordance with what kind of procedure, if the case in accordance with the procedure of first instance, the people's court for retrial judgment, ruling, the parties concerned may appeal against trial; if in accordance with the procedure of second instance, judgment, ruling is generating the legally effective judgment, ruling, the parties may not the appeal.

　　Two, the meaning and scope of administrative ruling

Administrative ruling refers to the administrative proceedings, the people's court according to the administrative procedure verdict.

Verdict and judgment shall have the same legal effect.

That has the following characteristics: (1) the process problems appear in administrative litigation (judgment error correction rule except); (2) wide application range, and not to be court hearing elements; (3) not required in writing; (4) is only part of the ruling parties enjoy the right of appeal.

That usually applies to the following areas: (1) is inadmissible; (2) the prosecution dismissed the objection to jurisdiction; (3); (4) the end of the proceedings; (5) the proceedings; (6) to or designated jurisdiction; (7) during the course of litigation to stop execution of the specific administrative act, or reject to stop the execution of the application; (8) the preservation of property; (9) the first execution; (10) approval or disapproval of the withdrawal of the suit; (11) correct judgment of a slip of the pen; (12) suspension or termination of execution; (13), instruction or remand for retrial; (14) approval or disapproval of the specific administrative act administrative organs; (15) other matters that need to be ordered. For (1), (2), (3) if a party refuses to accept the ruling,, have the right to receive books within 10 days following the date of a higher people's Court of appeal ruling. There can be no appeal ruling, once delivered to the law.

The people's Court of second instance in the trial of a case on appeal, also need to make some decisions to solve the problem of program. Among them, the following two kinds of ruling is more important and common decision: (1) shall file the case trial or ruling. (2) revocation of the original sentence, the. For five conditions: one is the court finds that the facts are not clear; two is the first trial evidence is insufficient; three is the first trial in violation of legal procedures, but also may affect the correct adjudication; four is the judgment of the first instance omitted to parties or claim; five is the judgment of the first instance omitted administrative compensation claims after hearing that, the people's Court of second instance shall make compensation in accordance with the law, in the confirmation of illegal specific administrative acts being sued at the same time, mediation may be conducted on administrative compensation; if the mediation fails, should be part of administrative compensation sent back for trial.

　　Three, the concept of administrative decisions and scope

Administrative cases in the people's court decision is made of special proceedings, litigation matters encountered in ruling.

The people's court decision is a generic term for various commands. The people's court decision mainly adjusts itself and the lawsuit participates in a relationship between people or other people in administrative litigation, or dealing with cases of procedures and have no direct relationship with the parties concerned matters.

Decision and ruled, can use written form, also can use verbal form. The oral decision shall be recorded in writing.

Once the decision shall have the force of law. The parties decide to the people's court are not allowed to appeal. The provisions of the law to be decision may apply for reconsideration, trial and decided not to stop during the period of reconsideration execution.

Decided to apply to the following: (1) the designation of jurisdiction; (2) transfer of jurisdiction; (3) whether avoidance; (4) identified third people; (5) specify the legal representative; (6) permit for lawyer outside parties and other agents ad litem consulting trial materials; (7) the specified identification; (8) determined not a public hearing; (9) handle obstruct action; (10) the transfer of cases; (11) enforcement of effective judgments and rulings; (12) determine the litigation expenses; (13) the internal problems in other procedures of minor or the people's court in administrative judgment during the process of.

　　The concept and characteristics of the four, the execution in administrative litigation

Execution refers to the people's court according to the legal procedure, the legal instruments already in force, the incumbent party refuses to perform the obligations, its mandatory obligations, ensure the effective legal document the content to be realized activity.

The administrative case execution has the general characteristics of judicial execution, but also has some characteristics of their own:

1, execution of the task is to realize the administrative legal relationship of effective legal documents determined.

2, the applicant or respondent party for administrative organ or organization authorized by laws, rules and regulations.

3, to the plaintiff and the defendant to take different measures of execution.

　　Five, administrative litigation according to the executive body, and measures

The executive body, refers to enjoy the procedural right, take action on the subject of duty related to administrative execution cases. Including the executive organ, the parties involved, execution and implementation of objection.

1, the executing organ. Also known as the performing organization, which has administrative executive power and presided over the subject of the implementation process, the executing organ of our administrative case include the people's courts and administrative organs.

2, the Party of execution. The applicant and the respondent the execution of the administrative litigation, or execution and execution. The execution parties responsible for the fulfillment of obligations of Party A is the applicant or the person to be enforced, and the enjoyment of the rights of a party is the applicant or the execution of the applicant.

3, participation of people. In addition to the other in the implementation process refers to the units or individuals outside the executive party.

4, implementation of objection. Refers to the execution of party, on the implementation of the subject claim subject.

According to, is refers to the people's court to take enforcement measures of effective legal documents. To become a legal document according to the execution must have two conditions: one is the legal document which has taken legal effect; two is the legal documents with executive force, namely the legal document's content requires the parties to make certain behavior can be achieved.

Administrative cases performed according to two categories: (1) made by the people's Court of the legal effect and legal writ enforcement content. Including: ① administrative verdict. The administrative rulings. The administrative compensation judgments. The administrative compensation mediation book. The administrative incidental civil judgments and mediation. The decision. (2) the administrative organ making the legal effectiveness and performs content, legal documents by the people's court for compulsory execution according to law.

Administrative cases in the execution of the program, in addition to perform according to the outside, must also meet the following conditions: (1) the parties refuse to perform as a people's court according to the legal obligations. "Repudiation" means that the parties have the ability to perform and intentionally fails to perform the obligations. Due to force majeure or other accidents caused by the parties fails to fulfill the obligation, should extend the term of performance. (2) must be within the statutory time limit for execution or the people's court shall refer the matter to the execution.

Administrative litigation execution measures mainly include two aspects:

1 of the citizens, legal persons or other organizations executive measures. Mainly has: (1) transfer or transferred, detain, extract the deposits of the person subjected to execution or labor income; (2) the seizure, seizure, freezing, sell the debtor's property; (3) forced to move out of housing, the compulsory demolition of illegal buildings or forced to withdraw from the land.

2 of the defendant of administrative organs in the implementation of the measures. Mainly has: (1) the corresponding return fines or should pay compensation, notify the bank to transfer from the administrative organ's account; (2) does not perform within the prescribed time limit, from the date of expiry of the administrative organ shall, from 50 yuan to 100 yuan fine; (3) put forward judicial proposal to the administrative organ at the next higher level administrative organ or the supervisory organ, the personnel, the judicial proposal agency, was treated according to the relevant provisions, and shall inform the court; (4) refusing to fulfill the judgment or ruling, is serious enough to constitute a crime, criminal responsibility shall be investigated in persons in charge and other persons directly responsible according to law.

　　Six, administrative litigation procedure

1 jurisdiction of execution. Enforcement jurisdiction is divided into the following two situations: (1) administrative judgments, the legal effect of administrative adjudication, administrative compensation judgments and administrative compensation mediation agreement, shall be executed by the people's Court of first instance. The people's Court of first instance that the special needs of the implementation by the people's Court of second instance, the people's Court of second instance can be carried out; the people's Court of second instance shall be decided by the executive, could decide to be executed by the people's Court of first instance. (2) shall apply to the people's court for enforcement of administrative legal documents to the person subjected to execution, accepted by the location of the grassroots people's court. The execution object as immovable property, the property where the basic level people's court. The basic people's court that the implementation is difficult, to be submitted to the people's court at a higher level; the superior people's court shall be decided by the executive, also can be executed by the people's court at the lower level decision.

Methods brought 2 executive program. Divided into two categories: (1) for execution. For enforcement of binding administrative judgments, administrative rulings, administrative compensation judgments and administrative compensation mediation, the obligation of one party refuses to perform, the other party may apply to the people's court for enforcement. (2) to perform. Litigation legal documents that judicial personnel of people's courts in accordance with the terms of the initiative will have the force of law enforcement personnel to perform delivery. Generally speaking, the following effective legal documents can be used to perform the way: one is to perform content made by the people's court to national interests and social interests of the decision; the two is made by the people's Court of advance payment and litigation preservation ruling; the three is made by the people's Court Executive content decisions.

　　Seven, non applicable scope and procedures of administrative litigation case execution

Non litigation administrative case execution, is refers to the citizen, legal person or other organization is not only to the people's court to bring an administrative lawsuit, nor performs the specific administrative acts made by administrative organs, administrative organs to the people's court for enforcement application, the people's court to take coercive measures, so that the specific administrative act to achieve the system.

Non litigation administrative executing cases have their own characteristics, mainly for:

The executing organ 1, non lawsuit administrative cases not administrative organs, but the people's court.

2, the non litigation administrative cases is performed according to the administrative punishment decisions made by administrative organs, the implementation of the subject is the specific administrative acts made by the administrative organs.

The execution applicant 3, non lawsuit administrative cases is the administrative organ, the person to be enforced is a citizen, legal person or other organization. But in the specific case of non litigation administrative cases, applicants may also be assigned specific acts of the right person or his heir.

Executive premise 4, non lawsuit administrative cases is a citizen, legal person or other organization within the legal time limit, not to bring an administrative lawsuit, also do not perform the specific administrative act obligation.

Scope of application of non litigation administrative case execution, refers to situations in which the administrative organ may apply to a people's court for compulsory execution of the specific administrative act, the conditions under which the administrative organ can not apply to the people's court for compulsory execution of the specific administrative act.

Scope of application of non litigation administrative cases is the implementation of compulsory execution right: no specific administrative act in administrative organs, and the rights to enforce the administrative organs and the people's court shall have the specific administrative act, the administrative organ may apply to a people's court for compulsory execution. In addition, laws and regulations, only to the specific administrative acts of administrative organs to enforce the right, for the unauthorized part, the administrative organ shall also apply to the people's court for compulsory execution. However, if only by the administrative organs to enforce the provisions of laws, regulations, administrative organs shall perform, shall not apply to a people's court for compulsory execution.

Non litigation administrative cases usually includes the following program execution:

1 application and acceptance. Non litigation cases since the implementation of the administrative organ for administrative organs to start, to the people's court for enforcement of its specific administrative behavior application is non litigation administrative case execution starts with the only way.

2 review. The people's court for enforcement of administrative organs of the specific administrative act shall be the case, by the administrative tribunal composed of Collegiate Court on the legitimacy of specific administrative acts are reviewed, and whether or not to approve the enforcement of ruling.

3 whether to approve the enforcement decisions. The specific administrative act for obvious illegal and damage the legitimate rights and interests of the person subjected to execution, the people's court shall order the disapproving the execution. For the need to take enforcement measures, the hospital is responsible for the implementation of enforcement of non litigation administrative institutions.