This year4Month4Japan is the Seventh National People's Congress of the second meeting of the "administrative procedure law of the people's Republic of China"20Anniversary. After the administrative procedure law of the people's Republic of China, "the State Compensation Law of the people's Republic of China", "administrative punishment law", "PRC Administrative Reconsideration Law", "the people's Republic of China Administrative Licensing Law" enacted, the state system of administrative legal system, establish and improve the.1989Years to2008Years, the people's courts at all levels to accept all kinds of first instance administrative cases1405085A,1401532One, the settlement rate99.7%. At the same time, also received a large number of administrative compensation cases and non litigation administrative execution cases.    

    Day for twenty years, with a mere snap of the fingers. Can say, the trial of administrative procedure law and related laws and the people's Court of administrative litigation cases, for our country to promote the rule of law, and promote social harmony and stability, the construction of the socialist country ruled by law has China characteristics have great positive significance. However, many problems exist at the same time. In the2009Years6Month2Day, the progress of the Supreme People's court bulletin "on the further strengthening of public opinion communication work opinions", summarizes the netizens put forward opinions and suggestions, the paper summarizes13Such problems need to research, administrative litigation is on file at the second.

   In fact, the administrative litigation case is difficult and is not a new problem. In the legal profession, legal person to have the administrative litigation case, but the problem is still not solved, harm is even more serious. In reality, the administrative litigation filing problem has become a common problem, appear in the courts at all levels around the court have such problems. And as everyone knows, the administrative litigation is the fairness and justice of the last line of defense, and often with the immediate interests of the people is. Administrative litigation to register will lead directly to the demands of the masses out of the judicial way, constitute the mass appeal unimpeded and realize justice obstacles, makes social contradiction to ease and without resolve simmering, intensified, outbreak, ultimately for the outbreak of brewing group, emergency planted a seed, and even endanger people's confidence in the justice system and the Republic of the mechanism, cause legal problems of political. Therefore, the administrative litigation case difficult problem caused the national attention of decision-making, to solve. Due to space limitations, the author in this paper enumerates several typical forms of administrative litigation case difficult:

A,    To identify the behavior does not belong to the scope of accepting cases difficult case

   In the case of difficult cases, the most common phenomenon is by the court of appeal in the case does not belong to the administrative case by the people's court shall not accept the scope for. The scope of jurisdiction of courts of law is "the people's Republic of China Administrative Procedure Law" article second, article eleventh, the provisions of article twelfth. In addition, interpretation of the Supreme People's Court on some problems in the implementation of "the people's Republic of China Administrative Procedure Law" (hereinafter referred to as the judicial interpretation) in the first, second, third, fourth, fifth and the supplementary provisions. In judicial practice, the people's court shall not accept the reason of the law is the most common administrative procedure law twelfth stipulation and the judicial interpretation of the second section of the first article in the fourth and sixth rules and the provisions of article third. By the court under the law applicable to different, result in administrative litigation case to case most can be divided into the scope of accepting cases of dispute: the final award behavior, abstract administrative act, not the real impact behavior, internal administrative behavior, generally interpreted as does not belong to the scope of accepting cases, will not be accepted.

1By the administrative act, the final award behavior is inadmissible;

   The author has represented Guangdong Zhongshan a land expropriation cases, local villagers for expropriation compensation is only six thousand yuan per mu and the expropriation of land for real estate development and the people's Government of Guangdong Province may levy decided, then the prosecution in accordance with the law, but the Guangdong Provincial Higher People's court in administrative behavior the behavior by making the final rulingGuangdong Provincial Higher People's Court (2008Guangdong) high line with the word no.90Administrative rulings, finds that the case is inadmissible, the party out of the judicial way, resulting in the administrative litigation case difficult. In this case, the Supreme Court ruling in GuangdongAccording to the determination of the expropriation is the only legal basis for the final decision"Administrative review law" the people's Republic of China, the provisions of the second paragraph thirtieth. The ruling according to the law, the decision of the State Council or the people's government at the provincial level administrative division adjustment of assignment, or expropriation of land, administrative acts belong to the final decision of the.

   In fact, the "administrative review law" of the people's Republic of China the thirtieth content: "according to the State Council or of the provinces, autonomous regions, municipalities directly under the Central People's Government on the administrative division demarcation, adjustment or expropriation of land, the province, autonomous region, municipality directly under the central government confirmed the natural resources, mineral water, land, forest, mountain, grassland, wasteland, beach, sea and other ownership or use right of the administrative reconsideration decision is final." The provisions of the law is obviously the provisions on land ownership issues review problems, rather than the law on land expropriation. The method in the first paragraph of content provided the preposition of reconsideration procedure land is the right case, the provisions of the second paragraph of the administrative reconsideration of province, autonomous region, municipality directly under the central government's decision shall be final. In this article, identified as the final adjudication is an administrative reconsideration decision, rather than according to the State Council or provincial, autonomous regions, municipalities directly under the central government, the people's Government of the administrative division demarcation, adjustment or expropriation of land, the land requisition decision no clarify the final ruling on any representation. Obviously, not the law that "decision of the State Council or the people's government at the provincial level administrative division adjustment of assignment, or expropriation of land, the administrative behavior" belong to the final decision of the conclusion. Equally clearly, Guangdong court ruling wrong understanding of the law, and made creative interpretation of the law, this is not allowed by the laws of china.

   Indeed, China's "administrative procedure law" as the final administrative ruling power of judicial review exemption left a room, this is the "administrative procedure law" article twelfth (4) provides: "the people's court shall not accept the citizen, legal person or other organization shall filed by the specific administrative acts the final decision of the lawsuit against the law". But so far, only three of our law provisions of the final administrative ruling power: one for the "Chinese citizens Immigration Control Act" provisions of article fifteenth, one for the "entry and exit of aliens law" provisions of article twenty-ninth, a"Administrative review law" the people's Republic of China, the provisions of the second paragraph thirtieth. These three laws are the only on the final ruling regulations, has become the judicial and legal circles say. Any court of creative's interpretation, and expand the scope of the statutory final adjudication practice in the trial, and the method is not appropriate.

2,By the administrative department of abstract administrative act is inadmissible;

   Abstract administrative acts and the specific administrative act,Is a basic classification of administrative law on administrative action made,Also our administrative litigation law as determined by the scope of accepting cases of administrative litigation standard. WhileBy the administrative department of abstract administrative act is inadmissibleThe dispute, for the administrative organ to file or decision. The file or decided this kind of administrative behavior, sometimes is a specific administrative act, sometimes may be the abstract administrative act. But the real definition files in the abstract administrative behavior and administrative behavior, itself is not complicated, in order to achieve the law specialized knowledge level can be, it is sure for specific populations and whether can be applied repeatedly to two important principles can be distinguished. In practice, the wrongThis is the behavior of the specific administrative act as abstract administrative behavior, and make inadmissible disposal, not the law is not clear, but the subjective reasons, the author in this paper do not make too much exposition.

3,By the administrative action to do not have a real impact right of citizen, legal person or any other organization that refuses to accept the obligations;

   The people's court according to the Supreme People's court, the second section of the first article sixth provisions about some problems in the implementation of "the people's Republic of China Administrative Procedure Law" in the interpretation of the administrative action, the system does not have a real impact right of citizen, legal person or other organization obligations, and this kind of behavior does not belong to the scope of jurisdiction of courts on the grounds not accept,Is an administrative case to one of the most common manifestations, is one of the reasons many people's court deprived of right of litigants and the like by legal basis, because this provision is abstract, but in practice convenient arbitrary interpretation.

   For exampleGuangzhou City Intermediate People's court that "Guangdong Province People's government for approval to the expropriation behavior is the internal administrative behavior of the administrative organ, do not have a real impact on the rights and obligations of the prosecutor".

   As another example in the author has represented Shanghai Zhou Yongkang, who was takenV. Shanghai city Jiading District housing security and the Housing Authority housing units delayed licensing dispute case, because refuses to accept the extension to permit behavior, the parties to the Jiading District people's court, but the hospital to the demolition permit extension relates only to the extension of the housing demolition period, no new rights and obligations set, so is not practical effect of removing people's rights and obligations, and that by ruled inadmissible. If a party refuses to accept the Jiading District court, appeal to the Shanghai second intermediate people's court, the court did not listen to the party without any comments or inform the parties of the case, directly with the same reason to maintain the first instance ruling. In this case, the demolition did not carry out the demolition activities in the period, but in the relocation period has expired and successfully applied for a demolition permit the demolition delay before held a mobilization meeting, before people have been taken to the demolition permit behavior did not know, is unable to express their views. (need to add, is not to prosecute the demolition permit and V. extension behavior, because between Shanghai and Hangzhou has similar practices, which in its official website or the newspaper discloses the demolition permit content when the presumption, namely litigant bears should be read and Internet obligations, thus presumed parties shall know the demolition permit behavior content, we calculated the administrative proceedings deadline. Of course, by the calculation of the offbeat calculation, of course, the vast majority of the parties will exceed the prosecution deadline)

   And for the same case, most of the city of Beijing, Guangzhou, China and Shanghai have different court practice, many extension to permit case has been handled. By the Beijing Municipal Higher People's court trial is discussed by the Committee and published "Beijing Higher People's Court on the law applicable to administrative trial solutions (three)" article sixth stated as follows: the demolition can not be completed within the prescribed period of the housing demolition permit the demolition work, extension units to apply to the housing units management, be approved housing units management behavior, whether to belong to the scope of administrative litigation? Answer: the demolition can not be completed within the prescribed period of the housing demolition permit the demolition work, extension units to apply to the housing units management departments, approved housing units management behavior, belong to the scope of accepting cases of administrative litigation. In the judicial practice also have found lots of effective legal documents extension to permit litigation. Although China is not the case law countries, the provisions of the Beijing High Court and the Beijing court's decision can not be used as the direct basis for the trial of cases in Shanghai City, but our judicial is integrated, and delayed licensing act on the rights and obligations of parties to impact and not a complex problem, either for the public people can make the right decision.

4In the administrative action, internal administrative act by inadmissible;

   In practice, there are many court sued action system internal administrative act is inadmissible, but sometimes will be classified asDo not have a real impact on the rights of a citizen, legal person or other organization obligations, sometimes placed in the abstract administrative behavior, and sometimes directly determine the internal administrative act is not actionable.

   The author has represented Anhui Huangshan City Huang Yinfeng a case. Huang Yinfeng home in Huangshan City only a set of housing, because of the relevant departments of Huangshan City close reason homestead housing approval, in the land without planning approval procedures. The residential block encountered residents, Tunxi District Bureau of administrative law enforcement to the grounds of violation of planning to make administrative punishment, and it will be a survival of the houses to be forced relocation. Huang Yinfeng then filed an administrative lawsuit and to apply for state compensation, because in the course of legal proceedings, the agent finds the Administrative Law Enforcement Bureau law enforcement officers have forged enforcement transcripts of the situation, Tunxi District Court confirmed the punishment behavior of Administrative Law Enforcement Bureau illegal and revoked, but the court also rejected the yellow house an application for state compensation, the reason is Huangshan City planning Tunxi District Bureau of Administrative Law Enforcement Bureau requirements of the yellow house is illegal construction, that should be removed. Huang then according to Huangshan City Planning Board finds that the behavior to the court, but the court to the recognition system of internal administrative act for, will not be accepted. In fact, since the law is not on the internal administrative act is not actionable provisions, as long as the prosecution in accordance with the law, it shall accept the case.

5By the administrative action system, summarized as does not belong to the scope of accepting cases of court action by inadmissible;

   This type of inadmissible, much hair at the people's court ruled that the book did not explain does not belong to the court the scope of reason or type, the parties are often unclear why does not belong to the scope of the court. For example, in the agentShanghai EastThe western suburbs of China World Trade Center wholesale market206Booth lease the people's Government of Shanghai city people v. not to accept the administrative reconsideration proceedings, the parties of the commercial shops are within the legitimate lease period, to2008Years11Month30On the evening of Minhang District people's government organized relevant personnel to be forcibly Weidang market, and in12Month11Forced demolition. The parties in accordance with the law to the Minhang District people's government for the respondent to the Shanghai Municipal People's government to apply for administrative reconsideration, but the Shanghai Municipal People's government made refuses to accept the decision of administrative reconsideration. If a party refuses to accept the decision, so the Shanghai Municipal People's government as a defendant in a lawsuit to the people's court. But the high court of Shanghai, simple to the litigants do not belong to the scope of jurisdiction of courts ruled inadmissible on the grounds of. The author thinks that the Shanghai Municipal People's government administrative reconsideration duties in accordance with the law of administrative reconsideration, the administrative reconsideration shall initiate the application to make a decision of rejection, it belongs to the scope of judicial review, this need not argue. Show strange in this case is the Shanghai high court, ruling that the administrative reconsideration refuses to accept the decision of administrative behavior does not belong to the scope of jurisdiction of courts without any reason and legal basis.

Two,    In that case the plaintiff does not have qualifications as a difficult subject in administrative litigation

   In addition to do not belong to the scope of accepting cases according to law court refused registration, part of the court the plaintiff does not have qualifications is also the subject of administrative litigation refused to register. At this time, the court is often cited the administrative procedure law and the judicial interpretation of the forty-first the first twelfth rules as its legal basis. The administrative litigation law twelfth stipulation: 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. In judicial practice, many courts in the operation of the provisions of the arbitrary interpretation. For example, the provisions of the "legal interest" to "law of direct interest", and the administrative behavior of stakeholders to initiate litigation shall not accept. For example, the Beijing Municipal Higher People's court "about the administrative judicial legal questions (three)"(Beijing high method[2008]160No.)Said: "taken with the removal of people who can not demolition compensation and resettlement agreement, housing units departments on the compensation and resettlement after ruling, be taken by human rights can be protected on the compensation and resettlement ruling legitimacy review, therefore, to be taken for construction project approval documents, construction land planning permits, construction project planning permits, demolition permits and other documents of approval, administrative lawsuit filed in the use right of state-owned land, should reject." In the face of such court internal regulations, cannot say, only at the no legal basis. The only added, in practice the legitimate rights and interests of residents simply can not only decide the litigation adjudication are reviewed, the focus of the review is the issue of compensation for resettlement, so can levy or is the means by which to examine the legality of the collection? Administrative litigation filing and so on to be too numerous to enumerate.

Three,    In a claim form and litigation request does not comply with the legal requirements for the difficult case

    In fact, the law does not require people to become legal experts or have to hire a lawyer, but uphold convenient litigation principle, so this should rarely exist in a claim form or litigation request does not meet the statutory requirements and cause for difficult. But in the judicial practice, there are a lot of put on record courtyard judge according to the administrative procedure law forty-first the grounds, to formulate a set of filing standards, their provisions: petition to what paper, need what font, content need, demand must be how how to write, the litigant's right to interfere, and even induced the legal way wrong.

   In such a case is difficult, there is a situation exists, is in necessary joint action, some local courts to require the parties to a suit, some places require numerous parties can only provide a complaint. This way of dealing with different, especially to request the parties to a lawsuit in the case of a large number of necessary joint action, also let the parties increased case difficulty.

Four,    Because the filing jurisdiction level dispute difficult

   Jurisdiction of administrative litigation in the level is required, such as administrative litigation law thirteenth to sixteenth, for example in the judicial interpretation of article eighth, but the provisions of "the great, complex" with the word given the scope of the discretion of administrative litigation case is huge, not buried the foreshadowing. The main controversy reflects exactly in the cases of first instance court of appeals is the intermediate court, or the court. This,2008At the beginning of the year, the Supreme People's Court issued the "Regulations" on issues concerning jurisdiction over administrative cases, provisions of Article 1: which one of the following circumstances, belong toAdministrative Procedure LawArticleArticle fourteenArticle (three) shall be prescribed in item under the jurisdiction of the intermediate people's Court of first instance administrative cases: (a) the defendant to people's governments at or above the county level of the case, but to the people's government at the county level to handle the registration of real property in the name of the case can be excluded; (two) great social impact of joint action, group litigation cases (; three) the major foreign-related or relating to the Hongkong Special Administrative Region, Macao Special Administrative Region, the Taiwan area of the case; (four) other major cases, complex. However, this provision is still "a great social influence", "the major foreign-related" discretionary vocabulary.

   The author notes that the Fujian Provincial Higher People's court has developed a "Fujian Province Higher People's court, opinions on administrative litigation cases accepted several issues of Administrative Tribunal (Trial)", the provisions of many positive. For example, in the thirteenth section, the subject of litigation200Million cases provided for major cases, the court accepted.

   I also noticed the effect in the Supreme Court "on issues concerning jurisdiction over administrative cases rules", Tianjin court then made a supplementary provisions, namely "Tianjin Municipal Higher People's Court of the Supreme People's court<Rules on some issues concerning the jurisdiction over administrative cases>Several opinions ". The "opinions" provisions: group action, land acquisition, demolition and other cases, the basic people's Court of first instance (idea), such provisions inconsistent with the provisions of the new manufacturing, is on file.

Five,    Court ruling on file difficult not to produce

   The administrative litigation law judicial interpretation stipulates thirty-second: the people's court shall form a collegial panel to the plaintiff's prosecution review. In line with the conditions for prosecution, shall be7Days put on record; do not meet the conditions of prosecution, shall be7Ruled inadmissible days.7Days can not decide whether or not to accept, should be accepted; acceptance after the review does not meet the conditions of prosecution, the court rejected the prosecution. On the basis of the provisions, the court shall complete the investigation in the review period, if not filing shall be ruled inadmissible. But in the judicial practice process, there are a lot of court in the case of seven days neither accepted nor issued rulings, some judges have the interpretation of verbal ruling; some said the judge is the leadership intention, some judges simply said the case is not made, how to love how to go; even some judges even receives a statement of complaint and the evidence does not issue receipts. The author as lawyers, the fear is met such a judge. When the judge turned rogue, when the court proceedings into and court proceedings, the law is the saddest.

   Administrative litigation filing forms to many, but the common nothing more than several, its reason also is nothing but the court by local government, the judge occupation ethics, administrative litigation legislation is not perfect, the judge illegal supervision is not illegal cost is too low, and the reason of deep administrative levels is probably many legal person carefully conceal mentioning. In providing solutions to think, have many choices, such as the education and selection mechanism, such as court financial independence, such as strengthening the protection of administrative litigation, or to the judge and develop a more detailed rules and regulations strictly, has strong operability. But I still think these to crack the case difficult is not enough, I remember that after the French Revolution, a period of time that the court is not allowed to accept administrative cases, lead to public administrative relief channels is not smooth. Eventually many littles make a mickle., water as the sea, set up the administrative court judge specialized specialized in handling administrative cases. Perhaps, not far in the future, this is the solution of administrative litigation case difficult to cure.

   Postscript: finish the last night, today found the Supreme Court gave a new regulations, the relevant contents are as follows: "a number of opinions" to the administrative trial work of the Supreme People's Court on the current situation of the six administrative cases accepted, smooth channel, and actively guide the masses to express their demands through the rational, legal way.Further enhancement for the initiative and consciousness of the Party committee and government share, for the masses out of accepting administrative cases, in accordance with law, and actively guide the masses to express their demands through the rational, legal way. The people's courts at all levels should attach great importance to administrative litigation filing work, shall not limit the scope of administrative litigation, no additional conditions of acceptance. The people's court at a higher level shall strengthen the administrative litigation case supervision, in accordance with the conditions of filing a case inadmissible, corrected in time, prevent the parties complain without the door and appeal everywhere, intensification of social contradictions.

                           Author: Beijing Cailiang law firm

                                  LawyerWang Ling Li Renjie