Beijing Jing Ping lawyers    CaoStar

Before   Words 

The current "administrative procedure law" enacted in October 1, 1990, has been 24 years, the relevant legal documents "the Supreme People's Court on the implementation of" the people's Republic of China Administrative Procedure Law "interpretation of several issues" formulated and implemented in 2000 March, has been 14 years, "" provisions of the Supreme People's Court on issues the formulation and implementation of administrative litigation evidence in 2002 July, has been 12 years. Influenced by the objective conditions and judicial practice, the current "administrative procedure law" and its supporting regulations cannot meet the needs of the reality, after 20 years of practice of baptism, the current "administrative procedure law" exposed the problems in judicial practice also grow with each passing day, the judicial organs are also feel helpless, people is fuss, three major litigation, administrative litigation has the lowest number of cases handled by the people's court in, the reasons are in many aspects, both from the legislative level, but also to reason from the judicial level, change the problem more social reasons and people own idea, causes complex the administrative litigation cases into the normal legal process difficulty, promulgated and implemented the "administrative procedure law" in 20 years, the administrative proceedings and not to regulate the administrative organ administration according to law, a legal ruling positive role of philosophy of law enforcement, the form of the "administrative procedure" is not complete to hinder administrative organ illegal administrative steps, and no laws adjustment of administrative behavior to the legislative intention. Fortunately, the legislature has taken note of the "problems" administrative procedure law in the judicial practice, and decided to "problem to amend the administrative procedure law" into the legislative field, according to the authoritative department sources said, from December 23, 2013 to 28, held in the twelfth session of the sixth meeting of the NPC Standing Committee, will consider the "administrative procedure law" amendment draft. By modifying the "administrative procedure law" opportunity, the problems exposed the "administrative procedure law" in the judicial practice as well as administrative litigation cases in the people's court number occupies low reason to do a brief analysis and discussion, hope legislature revise "administrative procedure law" can develop in measures and program modification draft under consideration, all the problems facing the effective solution of "administrative procedure law" in the judicial practice and the insufficiency, the administrative litigation can and other properties of cases highly valued by the judicial authorities and society.

Key word  Administrative Procedure Law     Modify the necessity   Analysis of the causes of

One, the number of administrative litigation cases in the cause of low

As mentioned before, the number of cases of administrative litigation long time in low low, the reason is various, in this section, the author of the administrative litigation cases in the main reason low is less makes a simple review and summary.

1The reason, from the legislation.The current administrative litigation scope is narrow, in the judicial practice not feasibility. "The people's Republic of China Administrative Procedure Law" second stipulates: "citizens, legal persons or other organizations hold that a specific administrative act of administrative organ or its personnel infringe upon their lawful rights and interests, have the right to bring a lawsuit to the people's court in accordance with the law"; Article eleventh stipulates: "the people's Court of citizens, legal persons and other organizations a suit against the specific administrative acts: detention, fine, rescission of a license or permit, order to suspend production or business, confiscation of property; restricting freedom of the person or the seizure of property, the buckle and freezing, refuses to accept the administrative coercive measures; think autonomy administrative organs violate the law business; that meet the statutory requirements to apply for the administrative organ to issue a permit or license, the administrative organ has refused to issue or not to reply; the administrative organ to protect personal rights, property rights legal duty application, an administrative organ refuses to perform or not to reply; administrative organ is considered to have failed to issue a pension in accordance with the law; that the administrative organs in violation of requirements the performance of duties; that the administrative organ has infringed upon other people's personal right, property right.Except the provisions of the preceding paragraph, the people's court accepts the laws, regulations and other administrative suits which may be brought";Article twelfth stipulates: "the people's court shall not accept the citizen, legal person or other organization filed on the following matters: the lawsuit behavior national defense, diplomacy; administrative regulations, rules or making of the administrative agency, released universally binding decisions, orders; administrative organs of the staff member of an administrative organ, rewards and punishment, or decision; law by the specific administrative acts of the final decision".

It is not difficult to see, the scope of accepting cases in administrative litigation on the issue, the law is limited to certain types of cases. In 2000, the Supreme People's court has the form of judicial interpretation, in the expansion of the scope of accepting cases of administrative litigation, but in the strict sense, the scope of accepting cases of administrative litigation is still not close to the rapid development of economy and society, the contradiction of the reality of the situation, a lot of existing legislation in the fuzzy zone is clear to progress, many problems remain to be solved. The author thinks, the administrative litigation to obtain larger promotion space, it is necessary by modifying the legal way to further clarify the scope of accepting cases, fortunately, the draft of the revised on the "administrative procedure law", the experts and scholars all have referred to the expansion of the scope of accepting cases of administrative litigation proposal, I believe, it must be attached great importance to the legislature, and is expected to be improved in the "administrative procedure law" revised and improved.

2, from the people's Court of reason.Although the law allows people to file an administrative lawsuit, but people in the face of government administrative rights when the reality is still teeter footsteps. From the Supreme People's court for the predicament of the administrative proceedings to resolve the difficult, issued many relevant judicial interpretations and regulations can be seen, the administrative litigation seems to be still difficult to get out of the "heads difficult" predicament. In 2009 November the Supreme People's Court issued "on the protection of administrative litigation right of litigants opinions" (hereinafter referred to as the opinion), the parties appeal further to give a clear and positive. But the "opinions" issued and that is one of the litigant's right protection, as it is to emphasize and reiterated that for the law. To solve practical problems of administrative litigation case difficult may explain the highest law "" one of the important reasons. In judicial practice, the litigant just pass a petition, namely by the court to claim not to set up the grounds, that it did not have the right to prosecute and ruled inadmissible, or administrative proceedings by the judicial organ to arbitrarily raise the threshold, the shall be accepted by the people's court for easily excluded from the scope of acceptance, and what is more, on the administrative case inadmissible, judicial organs are usually informed orally, not timely issued the relevant legal instruments, which increases the man-made barriers for the litigant rights road is. Recently, the author and his colleagues have experienced such embarrassment, the author undertakes administrative cases, in a city in Shandong province government refuses to accept the administrative reconsideration application and the extraction of administrative litigation, the court is to need to study and answer by repeatedly refused to accept. "Administrative case difficult, almost inaccessible", has become an administrative litigation in the field of industry practice. The protection of the public administrative litigation rights and relief is not only "the fundamental task of the administrative litigation law" formulated and implemented, or let people deserve rights are basic establishment and protection from the law, is a measure of the national government agencies is an important symbol of ruling by law. Unfortunately, in China's "administrative procedure law" promulgate step after more than 20 years, the administrative litigation is still facing Judicial Dilemma embarrassing, often in the case at the beginning of the judicial organs was relatively cold and intended to exclude and difficulties, the local court dare easily deprive people lift the administrative lawsuit, the the fundamental judicial localization. In the local courts at all levels of people, money, are directly subject to the local government at the same level of the administrative mode, one can imagine the pressure of local judicial intervention, nobody wants to be accused, especially government agencies and officials. Therefore, when the administrative litigation cases, local officials, the first thought is that through administrative means to interfere in the judicial, administrative litigation cannot ultimately forming or aborted, can directly control the local court of local government obviously has advantage of the intervention of local justice and judicial organs, most chose to compromise and surrender. This point, from the years of administrative litigation, people win very convincing confirmation rate was generally low in the reality of the situation can be obtained. The Supreme People's court also has the "long trial" and other laws and regulations, to eliminate the effect of local administration of judicial independence, but the so-called "policy, a policy of" all sorts of policies on the court, where the old long-standing has little effect.

3, from people's own reasons.People lack confidence in the legal, standard thought ingrained Officials one another. very difficult to break down. Since ancient times, "ordinary people have to Chinese harmony" of the traditional idea, always reluctant to go to war in the dispute matters. Especially in the process of dealing with government officials, is advocated "It's better to save trouble.", encounter grievance endure also on the past. "People do not fight with the officer", this is our country handed down for thousands of years of ancient. Because people generally think, the administrative litigation is a member at no huitoujian thing, from the analysis of essence, people look forward to the equality of the government and the people, look forward to a reasoning in the official civil dispute the place, and when the pursuit for thousands of years into reality, want to tell people confused confused, wandering, hesitated, can really tell? To win? Win again how? Will there be "shoes" in many aspects such as concerns will list the administrative litigation is determined before the people around. According to a typical survey data shows that: the main reason for the initial number of administrative cases is the people dare not reported, many people doubt, wait-and-see attitude, worry about people's court "Officials one another". With the in-depth development of the Franco Prussian War, after years of difficult exploration, the concept of the people has been changed, not only to understand the essence of the administrative litigation law, but also understand the attention and protection of their rights, practice, more and more people begin to learn to use legal weapons to protect their legitimate rights and interests.

Two, the disadvantages existing in the current "administrative procedure law" in the judicial practice analysis

The current "administrative procedure law" promulgated and implemented in October 1, 1990, has been 24 years. The author thinks, "administrative procedure law" in the implementation of the 20 years, the achievements of the great. First of all, in the idea, it will be the first "mingaoguan" such a procedure model fixed with the legal system, change the long people thought "people do not fight with the officer" in the traditional sense, both ends of the people and the government can sit in the same court, to accept the court the referee. The idea of change is enormous, which subverts the traditional thought for thousands of years, "the official is more noble than the people", while its government idea transformation is very significant. That government officials are now know the basic concept of "law", "know basic knowledge of administrative procedure law", change the idea than any system or the external environment are more important, because it is from the inside, from thought, from brain domestic role; secondly, "administrative procedure law" breeds and perfect a large number of democracy and legal system, from the "administrative procedure law" after the implementation of the "administrative punishment law", "Administrative Reconsideration Law", "administrative licensing law", "Administrative Coercion Law" and a series of related laws are in the "administrative procedure law" this big background, the formation of a series of legal system. Therefore, the author thinks, "administrative procedure law" has played a very important role in the process of our country laid the foundation stone of the whole administrative legal system; finally, "administrative procedure law" in relief people, legal persons and other organizations of the legitimate rights and interests, provides an important way. Although many people now believe that this channel is not the most direct, the most effective and the most perfect, but it is a way of relief, the relief way provides a channel is very important for the relationship, people adjust and inter governmental guarantee for the human rights and remedies. Of course, along with social progress and economic development, "administrative procedure law" in the judicial practice also exposed many problems, these problems are restricting the development of and limit the "administrative procedure law" and perfect, if it can not be effectively improved and revised, "development prospects of administrative procedure law" fear lest to a dead end, to sum up, these problems mainly by the following aspects.

1The scope of accepting cases, problems.The current "administrative procedure law" scope is too narrow, as everyone knows this is a fact, specifically, the current "administrative procedure law" adopts two methods stipulates the scope of administrative cases handled by the people's court. One is the general provisions, regulations that make the principle of unity of the court accepted the range of administrative cases. Such as the "administrative procedure law" second stipulates: "citizens, legal persons or other organizations hold that a specific administrative act of administrative organ or its personnel infringe upon their lawful rights and interests, have the right to file a lawsuit to the people's court in accordance with this Law" provisions of the eighth paragraph of article first; eleventh: "citizens think that administrative organs violate other human rights, property rights, may bring the suit"; the eleventh paragraph second: "except the provisions of the preceding paragraph, the people's Court of law, regulations and other administrative cases" may bring a lawsuit; these Provisions are the generalization of the method specified the scope of accepting cases of administrative litigation. The second is the stipulation by samples, the court should accept and can not accept the cases are listed from the administrative behavior of angle. For example, the court shall accept the administrative behavior of the administrative litigation law disputes enumerated eleventh first section of the first 7, Twelfth cited the court can not be accepted 4 items.

Visible, to define the scope of administrative litigation, the current "administrative procedure law" of two standards: the standard of specific administrative act, it is personal, property standards. First of all, the people's court accepted only against specific administrative action, the other behavior outside of the specific administrative act is the abstract administrative action litigation, the court shall not accept the. The concrete and abstract administrative acts is the theory of administrative law according to the administrative behavior according to whether the object is specific, relative to direct legal consequences and other standards in the administrative division. The specific administrative act refers to the administrative organs and their staff for specific citizens, legal persons or other organizations to make, can directly produce administrative behavior legal effect on their rights and obligations, this kind of behavior can only be used once, for example by the administrative organ for issuing license behavior, the administrative compulsory measures to specific people or an administrative punishment decision behavior. Abstract administrative act is refers to the administrative organ for non specific people to make legally binding regulations, rules and other normative documents behavior. Object abstract administrative act is aimed at non specific, its effectiveness for all application objects, and can be repeatedly used in a certain range; secondly, the people's court only receive the violation of citizen, legal person or other organization's personal and property rights of administrative act may initiate litigation, unless otherwise stipulated in laws, the people's court generally do not accept other interests outside of personal and property rights violations caused by administrative dispute. That is to say, if the administrative organ and its functionaries infringes on the citizen, legal person or other organization, the Publishing Association, demonstrations, religious belief and other rights, and the right to education, labor rights, the right to rest and other rights, whether citizens can sue, especially depend on the provision of laws and regulations, and the "administrative procedural law" not to the administrative relative person of such rights are infringed can prosecute clearly defined.

The author thinks, provisions of the scope of administrative cases of the current "administrative procedure law" is too narrow and rigid, "the legislative intent of the administrative procedure law" is the scope of administrative litigation, will be limited to protect citizens and legal persons and other organizations of the personal rights and property rights scope, that is why other provisions the main reason second paragraph after paragraph first 8 item eleventh. Obviously, the generalized incomplete and limited list must be left blank right relief. It is for the involvement of non specific administrative acts of the administrative relative person rights and interests, and violating the administrative relative person's personal and property rights and other rights, need to wait for the other laws and regulations further provisions, before the introduction of these laws and regulations, the administrative relative person and there is no way to make the lawsuit, brought a fatal impact this is the "administrative procedure law" to promote the development of.

2The qualification of the parties."Administrative procedure law" the twenty-fourth stipulation: "this Law in accordance with the lawsuit citizens, legal persons or other organizations is the plaintiff; the right to sue citizen is deceased, his near relatives may bring the suit; legal person has the right to bring a lawsuit or other organization is terminated, the legal person or other organization bearing rights may bring the suit"; rule twenty-seventh: "has interests in a specific administrative act lawsuit of other citizens, legal persons or other organizations, can be used as third applicants to participate in litigation, or the people's court in litigation"; the forty-first paragraph first: "the plaintiff is that citizens, legal persons or other organizations" specific administrative acts infringe upon their lawful rights and interests; in 2000 the implementation of the "Supreme People's Court on some problems in the implementation of" the people's Republic of China Administrative Procedure Law "interpretation" Twelfth stipulates: "the legal interests of citizens, legal persons or other organizations of the act and the specific administrative acts, may file an administrative lawsuit according to law".

The above is the provisions of existing laws on the qualification of the plaintiff in administrative litigation. In practice, how to identify the "interested" and the specific administrative act into a prone to ambiguity problem, understanding of people's courts and the administrative relative person of this problem is not a and it is easy to cause disputes, how to determine whether a "legal interest relations" in the judicial practice, what kind of relationship it belongs to the legal interest, there has been no definition and standard for many years. In this formulation, the non relative people lost their independent action has certain relation with the administrative case opportunities, or they can only rely on the other "legal interest" relative to the prosecution as the third party to participate in the litigation, otherwise, their interests can not be protected through the lawsuit way. Only by the word "legal interest" makes clear specific standard court plaintiff qualification in administrative litigation in judicial practice is very difficult, because the stakes can be divided into direct and indirect stake stake, the real interest and may be interested. What "administrative procedure law" clearly defined "legal interest" is what kind, is directly or indirectly interested stakeholders, is the realistic interests or concerns, the law is not clear as to the judicial practice brings certain difficulty, the practice of "legal interests" operation is not strong, which tend to be rejected by the court of appeal case deprived relative excuses. The author thinks, "administrative procedure law" clear "legal interest" should include the following 3 aspects: ① the sued specific administrative acts of violation against the people's legitimate rights and interests, and the damage; the prosecution of the legitimate rights and interests infringed must be in the administrative behavior occurs after formation in the law; the prosecution of the legitimate rights and interests infringed and the specific administrative act is a direct causal relationship, that is as a result of the legitimate rights and interests infringed as administrative acts cause caused by a direct causal relationship, which has been identified in the law.

In practice, the author of the above understanding often and put on record courtyard judge to diverge, so often have to prove that the prosecution and the specific administrative act "legal interest" and big nerve racking, the law is not clear to the judicial practice has brought a lot of space elastic, coupled with the unique "civil administrative litigation the official" characteristics, which often become the administrative case into the proceedings at the beginning of awkward questions would have to face, the other hand have to mention is, "administrative procedure law" of the administrative litigation plaintiff qualification is not specified, but only set up the protection of citizens, legal persons and other organizations of the legitimate rights and interests the types of administrative proceedings, subjective litigation that the protection of the subjective rights of the party concerned, it shall not be sued for the benefit of others, but not for the social and public interests in administrative litigation, limits the people directly to protect national and public interests through administrative procedural rights. The prosecution is the administrative litigation plaintiff qualification? The current "administrative procedure law" also not be clear. In recent years, the public prosecution organ as plaintiff of public interest and the administrative litigation is always a hotspot in academic discussion, improve the problem also relates to the plaintiff qualification in administrative litigation of our country. In the "legal interest" is not clearly defined, the prosecutor can represent the interests of the public has the qualification of plaintiff in administrative litigation. The administrative organ to exercise the administrative power law, damage the interests of the state and the public interest cases occur from time to time, this can cause the administrative public interest litigation, the current "administrative procedure law" does not provide special plaintiff prosecution organ can be used as a public interest litigation, the plaintiff also have no special provisions of civil, legal person or other social organizations can be used as a public interest litigation, this makes the interests infringed body could not be materialized, the result is that of national and social public interests in disregard of, but also on the abuse of administrative power and indulge indulgence. In 2013 January the revision and implementation of the "PRC Civil Procedure Law" fifty-fifth stipulates clearly the mention of "civil public interest litigation plaintiff qualification" situation, I believe, in the near future, "administrative procedure law" will be "the plaintiff qualification of administrative public interest litigation" situation into the legal provisions.

3The aging problem, the prosecution. "Administrative procedure law "thirty-ninth stipulates:" citizens, legal persons or other organizations directly file a lawsuit to the people's court, shall be made within 3 months it knows that a specific administrative act. Except as otherwise provided in law ";" provisions on some problems in the implementation of "the people's Republic of China Administrative Procedure Law" interpretation of the Supreme People's court "article forty-first:" the executive specific administrative acts, did not inform the citizens, legal persons or other organizations the right to appeal or the prosecution, the prosecution period from the citizens, legal persons or other organizations know or should know the right of appeal or the prosecution deadline calculation date, but he knows or should know that the content of a specific administrative act date shall not exceed 2 years, the reconsideration decision did not inform the citizens, legal persons or other organizations claim or legal prosecution deadline, the provisions of the preceding paragraph "; Article forty-second stipulates:" citizens, legal persons or other organizations do not know the specific administrative behavior made by administrative organs, the prosecution deadline from knows or ought to know the specific administrative act in the calculation of the date of. To not move the specific administrative act made from the date of making more than 20 years, other specific administrative acts from the date of making more than 5 years of litigation, the people's court shall not accept the".

From the above provisions can be seen, administrative proceedings prosecution deadline of legal confusion, the author roughly the following circumstances: the administrative organs of the specific administrative act to the party served, and inform the litigation rights, should know that within 3 months from the date of the prosecution of specific administrative act the administrative organ; make the knowledge of specific administrative act served and, but did not inform their litigation rights, should know or should know the litigation rights within 3 months from the date of the prosecution, but he knows or should know that the content of a specific administrative act date shall not exceed 2 years; the administrative organ fails to inform the content the administrative act, the parties afterwards just know administrative behavior and litigation rights, should know or should know within 3 months under the content of the specific administrative act, but shall not exceed a specific administrative act involving immovable property to date 20 years, other specific administrative acts of 5 years from the date of; the administrative organ fails to inform the content the administrative act, the parties afterwards just know administrative behavior, after a period of time, and only know v. Litigation right, according to the actual know 3 months, no more than to know or should know the content of the specific administrative act within 2 years, no more than a specific administrative action taken 5 years from the date of the lawsuit right, (involving immovable property 20 years) to calculate the. The author as a legal professional, still feel the administrative proceedings prosecution deadline prescribed too messy, mastering and application is not an easy task, for the ordinary people, the prosecution time accurate grasp of administrative litigation has become an impossible task, which for the people to bring an administrative lawsuit in manufacturing the corresponding difficulties and obstacles, the author thinks that the administrative proceedings, the aging problem is a simple question, but are more complex, in judicial practice, the court often to the plaintiff surpasses the prosecution period rejected prosecution, the prosecution time become the people in administrative litigation over threshold has arrived must be given to modify and perfect.

4The execution of the judgment, problem."Administrative procedure law" the eighth chapter sixty-fifth, Article 66 specifies the problems in the implementation of administrative judgment, of which sixty-fifth clearly states: "the parties must fulfill the people's court in a legally effective judgment, ruling. The citizen, legal person or other organization refuses to perform the judgment, ruling, the administrative organ may apply to a people's Court of first instance for compulsory execution, or law enforcement. The administrative organ refuses to perform the judgment, ruling, the people's Court of first instance may adopt the following measures: ① corresponding return fine or should be paid 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 organs, daily 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, personnel department. Accept the authority of judicial suggestions, according to the relevant provisions, and shall inform the people's court; ④ refuses to execute the judgment or ruling, where circumstances are serious enough to constitute a crime, shall be investigated for criminal responsibility "persons in charge and other persons directly responsible in accordance with the law;" the supreme people's Court on some problems in the implementation of "administrative procedure law of the people's Republic of China" explain "the ninety-sixth stipulation:" the administrative organ refuses to perform the effective court judgment, ruling, the people's court in accordance with the provisions of the third paragraph can handle the administrative litigation law sixty-fifth, and with reference to the relevant provisions of the Civil Procedure Law Article 102nd, the main responsible person or the person directly responsible shall be fined".

The author believes that, in the legal provisions on administrative litigation judgments, the administrative enforcement measures and enforcement is lacking, in judicial practice, the administrative relative person, which suit after the execution is relatively easy and simple, but for the defendant of administrative authority, problems in the implementation of its execution is not well, the implementation of the difficulty is very big still, such as the return of property, the payment of money aspects of performing obligations, the administrative organ refuses to perform, the court did not dare to beg, but not frozen transfer, finally is unable to perform, the air holds the paper no practical effect; for instance, restriction of personal freedom the judgment of the court case, the administrative organ immediately lift the mandatory measures, but the administrative organ is not lifted, the court did not dare to enforce the and so on the case is not alarmist talk, have never the case in practice is the case, these do not fulfill the verdicts of the situation is not unique in administrative litigation, often occur in the in civil proceedings, but the difference is that the defendant in administrative litigation is of specific interest groups, the statutory duty And the corresponding power, when the statutory obligation to effective judgment rules, court enforcement measures and efforts are relatively small and short, as people go through untold hardships to solve the problem, the qualification of the case, look forward to hearing, to the decision, but was actually a legal program useless to the public, it hit is self-evident, brings to the society harm is enormous, if things go on like this, the court authority will gradually lose their. But the executive act arbitrarily, flouting the law consciousness will also more and more strong, the law will lose credibility, and the public, prefer to choose the complaints, gift giving and other ways to safeguard their legitimate rights and interests are not willing to participate in the administrative procedure, which is contrary to the legislative purpose of administrative litigation, at the same time also exposes the "administrative procedure law" in the execution of the judgment problem and deficiency. Fortunately, in 2013, published in December, "administrative procedure law" revised draft article forty-eighth clearly increase provisions: ① is the administrative organ refuses to perform the judgment, ruling, mediation book publish; ② is refusing to fulfill the judgment, ruling, mediation, bad social impact, can be the person in charge directly responsible for the administrative organs and other directly responsible personnel shall be detained. I believe, only increase the administrative organ and the relevant leaders form of punishment and efforts, we can really protect the administrative litigation judgment execution efficiency and enforcement.

5, "administrative procedure law" and other relevant laws and regulations between the conflict.

Joining of "Administrative Reconsideration Law" and "administrative procedure law". "Administrative review law" seventh stipulates: "citizens, legal persons or other organizations think that the following provisions on the basis of which the specific administrative acts of the executive authorities is not legitimate, on the specific administrative act of the administrative reconsideration, the administrative reconsideration organ may concurrently to the prescribed examination application: the provisions of the State Council departments of the provisions; local people's governments above county level at all levels and departments; the provisions of the people's Government of a township, town. Shall not contain State Ministry, Commission regulations and the local people's government regulations listed in the preceding paragraph. Examination of the rules in accordance with the laws, administrative regulations. Therefore, the above three kinds of abstract administrative act are administrative reconsideration. "Administrative procedure law" second stipulates: "citizens, legal persons or other organizations hold that a specific administrative act of administrative organ or its personnel infringe upon their lawful rights and interests, have the right to bring a lawsuit to the people's court in accordance with this Law"; "the Supreme People's Court on some problems in the implementation of" the people's Republic of China Administrative Procedure Law ". The first chapter explains" the scope of accepting cases, more is to exclude abstract administrative act within the scope of the court, it appears in the judicial practice, the judicial embarrassed situation of some abstract administrative behavior can only bring administrative reconsideration cannot bring an administrative lawsuit, "the specific administrative act", in addition to the law final ruling by administrative organs outside, the specific administrative act any as long as it can bring an administrative reconsideration also may bring an administrative lawsuit, administrative reconsideration by its own characteristic constraints, the reconsideration organ is usually made the specific administrative act on the organ at the next higher level or the administrative organ itself, is unable to achieve the accuracy and fairness of administrative behavior, it is also the case, "the administrative reconsideration law" fifth stipulates: "citizens, legal persons or other organizations for administrative reconsideration decisions Disaffected, can bring an administrative lawsuit to the people's court in accordance with the provisions of the administrative procedure law, but the law of administrative reconsideration decision except for the final decision". Visible, the people's court is the final checks whether a specific administrative act is legal and the specific administrative act, the reconsideration of determines the suability, on the contrary, as long as it is not filed a reconsideration of course also lost a lawsuit. At the same time, "administrative procedure law" and the provisions of the people's Court on the legality of specific administrative acts are reviewed. Visible, "Administrative Reconsideration Law" and "administrative procedure law" in the provisions of different legal remedy to the abstract administrative behavior, it be revised and improved in the revision of administrative litigation law "when".

Cohesion is the "administrative punishment law" and "administrative procedure law". "Administrative punishment law" Twelfth stipulates: "the State Council department, Commission regulations in the laws and administrative rules and regulations, be given administrative punishment behavior, scope and magnitude of specific provisions; not yet enacted laws, administrative regulations, the provisions of the preceding paragraph, the State Council department committee regulations for violations of administrative management order behavior, you can set a warning or a certain amount of fine in administrative punishment. The amount of fines shall be prescribed by the State Council; the State Council authorized with the right of administrative punishment in accordance with the provisions of the institutions directly under the first paragraph of this article, paragraph second, the provisions of administrative punishment ";" administrative procedure law "fifty-third stipulates:" the people's courts shall, according to the State Department, the people's Government Committee according to the laws and administrative regulations of the State Council, command decisions, regulations formulated and announced, and the people's Government of a province, autonomous region, or municipality directly under the central government and the provincial, autonomous region is located, and large cities approved by the State Council, according to the formulation of laws and administrative regulations of the State Council issued the regulations; the people's court that the local people's government regulations formulated and announced, and the State Council department, Commission regulations formulated and announced, inconsistent, and the State Council department, commission of China, between the regulations are not consistent, the Supreme People's court shall refer the matter to the State Council for interpretation or award". The provisions of the two law in practice ambiguous, on the one hand, "administrative punishment law" to give some regulations in warning, fines and other administrative punishment rights; on the other hand, "administrative procedure law" provisions of the people's court according to some regulations in handling administrative cases, the people's court in the proceedings clearly reference rules does not include the "establishment of the right of administrative punishment regulations was awarded the administrative punishment law", which caused a legal conflict ", in accordance with the provisions of the law on administrative punishments" certain rules can be punished type setting, but in administrative proceedings, it can not be identified as the specific administrative action is lawful. According to not know what course to take, let the administrative organ's dilemma. In order to eliminate the conflict of laws, so the author suggests, should pay attention to the effective cohesion and the relevant laws and regulations in to revise and improve the "administrative procedure law", and strive to achieve the perfect combination of the unification of law and the validity of the.

Three, the conclusion

The author from the above aspects of "administrative procedure law" to modify the necessity to perfect the analysis and thinking of simple. Of course, the reality of the "administrative procedure law" still exist many problems, such as the rules of evidence, procedure guarantee requirements, system setting measures, a law implementation effect and the needs of society is inseparable, is influenced by many factors, the current "administrative procedure law" is obviously not suitable for the demands of reality, and unable to meet the growing social demand, has come to be improved and revised the intersection, I expect the "administrative procedure law" amendment not only can effectively solve the above problems, but also to the area of administrative litigation benefits and implementation of greater space.