The administrative organs shall not intervene, hinder the court case

In 2013 September, a Henan hotel staff administrative proceedings to the court, hope for the local administrative department of industry and commerce through legal channels to a statement. And the court has to "the leader said not filing the case" as an excuse to let them eat cold-shoulder treatment.

At present, our country faced in administrative litigation "placed on file, the trial difficult, difficult execution", "on file", must focus on the crack. Citizens, legal persons or other organizations and government organs and their staff have a dispute, administrative organs than when the defendant, the court refused to accept, leading many shall resolve through litigation disputes into the channel, the "letters and visits not the letter of the law" occurred in some places.

For the entrance flow in administrative litigation, the draft amendment at first increased, the court shall guarantee that citizens, legal persons or other organizations the right to sue, to administrative cases shall be accepted according to the admissibility of. The administrative organs shall not intervene, hinder the court administrative cases. The administrative organ shall respond.

"In practice, administrative intervention, hinder the court accepts the administrative case more, especially relates to housing demolition, land expropriation, the prosecution of the case." Research Center for constitutional and administrative law at the Peking University, Jiang Mingan pointed out that, due to the limitations of the times, the administrative litigation law was established rules, system and idea and the reform and development of democracy and the rule of law and the reality have maladjustment, lead to various defects.

According to the "on file", the draft amendments to strengthen the court procedures, increase provisions: the people's court shall be registered on the spot after receiving the complaint, and issue a written document date. The indictment deficiency of the content or other errors, shall give guidance and interpretation, and the one-time inform the party to rectify. Shall not without the guidance and interpretation to the prosecution did not meet the requirements for not accepting. The draft amendment also defines the corresponding responsibility, the court added provisions: not receiving the complaint, the parties may file a complaint with the superior court, the court at a higher level shall order it to make corrections, and the responsible personnel shall be given sanctions.

"The law changes the judicial justice, supervision of the principles and purposes of administration, the administrative litigation should be the essence, the return of legal standard, is a highlight of this modification." Professor Shen Kui of Peking University School of law, said.

　　Expand the scope of accepting cases, Sue coca head

For a variety of reasons, our country in the formulation of administrative procedure law, the scope of accepting cases of administrative litigation for the more stringent restrictions.

Jiang Mingan introduced, many administrative behavior, such as the abstract administrative behavior, administrative behavior, involving civil and political rights, labor rights, the right to education, administrative behavior, even if the infringement of citizens, legal persons or other organizations of the legitimate rights and interests, because of the current administrative procedure law explicitly excluded from its scope of accepting cases in administrative litigation or not be explicitly included in the scope of administrative litigation, the victim can not bring an administrative lawsuit to the court.

In order to protect the right of prosecution, the draft amendment to further expand the scope of accepting cases of administrative litigation. Will involve land and other natural resources ownership or right to use, right to contracted management of rural land, to pay the minimum living guarantee and other official civil disputes, into the scope of administrative litigation.

"The expansion of the scope of accepting cases is the general trend." China University of Political Science and Law professor Wang Jingbo think, the draft further clear list of specific administrative act, can avoid the court excuses there is no explicit legal provisions shall not accept the.

"But because of the scope of accepting cases only accepts the infringement of personal rights, property rights, citizens, legal persons and other organizations have the right to participate, the right to obtain protection cannot be. Behavior of the administrative contract, administrative and other new nor listed by comprehensive, accepting and dealing with obstacles." Wang Jingbo suggested that the administrative dispute are included in the scope of administrative litigation, administrative acts or administrative disputes as accepting standard.

To facilitate the parties to exercise the right to appeal, the draft amendments also clarify can "oral proceedings:" the prosecution shall be submitted to the court indictment, if the plaintiff is difficult, can be oral proceedings, the court shall record, written certificate issued by the date, and inform the party.

"A lot of less educated people prefer using the method of oral prosecution. This strong operational in practice. But either spoken or written, the prosecution must comply with the conditions, such as explicit, such as the basic facts." Mr. Shen said.

　　Different jurisdiction, reduce administrative intervention trial

In June 3rd this year, Shandong Zaozhuang City District People's court hearing of administrative litigation cases with 23 Villagers joint action of a people's government does not fulfill the information disclosure legal duties. It is under the jurisdiction of administrative litigation cases to carry out the pilot work of Shandong province since the first trial, in the administrative litigation.

The provisions of the administrative litigation law, the basic people's court as the court of first instance administrative cases. In order to solve the difficult problem of administrative cases, reduce local government intervention in the administrative trial, the draft amendment increased provisions: one is the higher people's court may determine the number of grassroots courts in cross Administrative Region under the jurisdiction of administrative cases in first instance. The two is filed a lawsuit against a specific administrative act of local government at or above the county level of the case, under the jurisdiction of the court.

Wang Jingbo think, the current administrative procedure law provisions on jurisdiction, jurisdiction and general standards, different degrees of follow the provisions of civil litigation jurisdiction. However, administrative litigation and civil litigation are different in so many ways, the administration of justice, the local has great influence on the administrative proceedings, the administrative jurisdiction of the justice exercise.

"This change, for the administrative trial from local interventions, is important to achieve the independent exercise of administrative jurisdiction." At the same time Jiang Mingan must be modified also pointed out, only it is impossible to completely solve the problem of local intervention, also must carry out the reform of the judiciary personnel management system and the reform of judge system.

Experts also pointed out that, administrative cases most grass-roots court less. Recommendations will be grass-roots court of first instance administrative cases jurisdiction to the intermediate people's court. This can better able to get rid of local administrative intervention, effect, on the other hand can concentrate on trial to trial.

　　No execution of the judgment of the court, be detained officials

To the ordinary people, officials hard, win the lawsuit, perform more difficult. The execution of the judgment of the court of the administrative organs do not more prominent problems.

"The relative person very not easy to winning the lawsuit, the court to revoke the illegal administrative acts, or order the administrative organ to perform its statutory responsibility, compensation for loss of administrative relative person, is not the sentence, relative person although successful, but a judgment of its spending a lot of time, money from the court to get just a piece of unfulfilled the lip-service." Jiang Mingan frankly.

Aiming at the difficult to execute, the draft amendment to increase provisions: refusing to fulfill the judgment, ruling, mediation, bad social impact, can be directly responsible persons in charge of the administrative organ and other directly responsible personnel shall be detained. The administrative organ refuses to perform the judgment, ruling, mediation book publish.

"This provision for promoting the implementation is quite strong, although there are 'bad social impact' constraints, may be careful using this method in practice, but the detention or have a certain deterrent." Wang Jingbo said.

Jiang Mingan thinks, because the detention relates to personal freedom of citizens, application must be very careful, can take other measures to ensure the implementation of the do not apply to detention. Therefore, only the "bad social influence" situation is appropriate.

"In short, the current administrative procedure law in many regulations are outdated, unreasonable, does not fit in with the needs of modern market economy and democratic political development, the modified potential must, necessarily." Jiang Mingan stressed.