Zhang Shuihua

(Jiangxi province Jishui County People's Government Hill OfficeJishui331600.

AbstractAbstract: clear property right is the core of the reform of forestry property right system, and to solve the dispute of mountain forest ownership is clear forestry property rights of the most critical link. At present, the dispute case whether administrative adjudication, administrative reconsideration or administrative proceedings, the people's government as the leading. According to the present law, the dispute case in the administrative reconsideration or litigation, the people's Government of a party to the case. Practice ownership dispute litigation in the forest, "forest law" and the relevant provisions of administrative legal conflicts, would inevitably cause administrative (government) and judicial (the courts) the contradiction between, can easily make the case involved "loop suit" endless. The forest property belongs to the property, the dispute will be civil disputes, which is the essential difference between administrative punishment cases. Therefore, the dispute settlement should be adapted to the civil law, which is consistent with the purpose of law.

Keywords: the dispute; lawsuit; application of law; study

1Cause the dispute of mountain forest ownership

After the 1982 implementation of the household contract responsibility system in rural areas, have responsibility mountain (mountain and hilly land contract), in addition to the collective, individual also has on the forest management right and ownership. In carries on the division to the mountain of ownership, in accordance with the "sanding forestry" principle and the relevant policies, by the government to the ownership and use right for redistribution of the register, and presented the corresponding hilly land use permits or contract book. But at that time because time is short, heavy task, difficult conditions, application of topographic map technology can not keep up, and some methods of extensive and work on paralysis, appears unavoidably boundary is unknown, unclear ownership, even repeat fill card phenomena. After some years, especially the development of various agricultural policies and forestry economy, farmers in the management and return of these mountains, many contradictions will outbreak out, thus forming the dispute of mountain forest ownership. In fact, this kind of dispute is caused by the infringement of others, rather than administrative management caused by.

2The people's court for trial for evolution of the dispute of mountain forest ownership law

In October 1, 1991 the "PRC Administrative Litigation Law" (hereinafter referred to as the "administrative procedure law") after the promulgation and implementation, re regulate the rights, reconsideration and litigation dispute, the people's court in the trial and adjudication, the form has undergone major changes. Mainly in the:
2.1 initiate procedural changes

"Before the promulgation of the administrative procedure law", the law of the people's Republic of China is mainly used "the dispute of mountain forest ownership" (hereinafter referred to as the "forest law") and "procedural law of the people's Republic of China (for Trial Implementation)" (hereinafter referred to as the "Civil Procedure Law") and other relevant provisions. Published in January 1, 1985, "forest law" fourteenth paragraph third: the parties accept the decision of the people's government, the date of receipt of the notification within a month, to the people's court. The prosecution to opposite party to the dispute, in accordance with the provisions of the civil procedure law, civil lawsuit. The people's court in a civil case acceptance. And the "administrative procedure law" promulgated after, according to the law the thirtieth regulation, the people's court in forest ownership dispute cases, must review:
  (1) people's government is in accordance with the "forest law" article fourteenth (amended "forest law" article seventeenth, paragraph two) the provisions of disputes over, and make a decision. This is the pre condition of a lawsuit.

(2) if a party refuses to accept the people's government decision, whether to apply for administrative reconsideration. "Administrative procedure law" the thirty-seventh stipulation: belonging to the people's court administrative cases the scope of accepting cases, citizens, legal persons or other organizations may apply for reconsideration to the administrative organ at the next higher level or the provisions of laws and regulations, the administrative organ, who refuses to accept the decision of reconsideration, bring a suit in the people's court. May also directly bring a lawsuit to the people's court. (Note: here the parties have the right to choose, it may apply for reconsideration, can also directly to the people's court). Promulgated and implemented in October 1, 1999 the "administrative review law", in accordance with the provisions of the law thirtieth: "citizens, legal persons or other organizations think that the concrete administrative behavior violated its has to obtain land, minerals, water, forests, mountains, grasslands, uncultivated land, beaches, waters and other natural resources ownership or use right, shall first apply for administrative reconsideration; if the party refuses to accept the decision of administrative reconsideration, it may bring an administrative lawsuit in a people's court according to law." In accordance with the provisions, the parties accept the decision of the people's government, must first apply for administrative reconsideration, the administrative reconsideration as conditions and necessary procedure prerequisite to bring an administrative lawsuit. (Note: the no choice).

(3) whether the parties as an administrative lawsuit. In the "prior to the implementation of administrative procedure law", people used to the dispute as tort disputes to the prosecution, the people's court to confirm the litigation to trial. "After the implementation of the administrative procedural law", according to the Supreme People's Court on the implementation of "new issues" administrative litigation law of the people's Republic of China (hereinafter referred to as the "opinions") the seventh stipulation: refuses to accept the decision of citizens, legal persons or other organizations related to land ownership, mineral, forest resources of the people's government or its department in charge of or the right to use property, according to the people's court, the people's court shall accept the case as an administrative case. Accordingly, the people's court in forest ownership dispute cases, will the past in civil cases on file for the practice of administrative case to accept.

(4) whether to people's Government (including the reconsideration organ) as a defendant. Because of the forest ownership confirmation is a specific administrative act made by the people's government, according to the "administrative procedure law" and the "opinions" provisions of article seventh, as the defendant is not controversial and the opposite party, but by the government for the defendants, according to the administrative lawsuit.

(5) exceeds the prosecution deadline. (the prosecution deadline in third points as the new problems of applicable laws described).

Changes in the 2.2 trial

When hearing civil cases in accordance with the main review, both parties on the basis of the claim of factual basis and legal basis, the validity and not related to the government's administrative act of. As the administrative cases, in addition to providing the review of the plaintiff and the third party evidence, mainly review the defendant (government) made the specific administrative act (the decision) based on the laws, regulations and policy documents, are reviewed emphatically in the program is legal, in fact is clear, the applicable law is appropriate the new problems. Because the "administrative procedure law" provisions of the burden of proof of the defendant.

Changes in the 2.3 trial results

When hearing civil cases in accordance with the people's court may organize parties, such as the plaintiff, the defendant and the third person of mediation in accordance with the principles of civil law, such as the success of mediation, to avoid the natural purpose, to the satisfaction of all; if the mediation fails, the court according to the Civil Procedure Law (Trial) and "general rule of the civil law" (hereinafter referred to as the civil law) the relevant provisions, in respect of history, follow the facts and according to the reality, the dispute of mountain forest (a forest, woodland) ownership or use rights belonging to the confirmation decision right, directly to one party or both parties. And the "administrative procedure law" as the administrative cases in the dispute, in accordance with the "administrative procedure law" in article fifty-fourth, can only make the following two sentences in one:

(1) the specific administrative act irrefutable evidence, applicable laws, regulations, compliance with the statutory procedures, maintenance of judgment. This article refers to the administrative decision made by the people's government to maintain (including the reconsideration decision).

(2) the specific administrative act is insufficient evidence, applicable laws, regulations, in violation of the statutory procedures, the wrong beyond or breach of privilege and other circumstances, the decision to withdraw or partially withdraw, and sentence the defendant to undertake a specific administrative act. In addition, no other feasible way to court, not for mediation. This provision, see from the surface reflects the judicial power is higher than the administrative power, but unable to correct improper specific administrative acts, which can not make judgments, but only up to a supervisory function, there is no end to the parties in dispute, it decided to cancel the government, at the same time the party then push to the government, to some extent, add new administrative burden and pressure to the government.

3At present, the trial of new problems in administrative litigation law applicable to the dispute case

"Administrative procedure law" promulgated, is a great progress of the judicial system in China, indicates that China has entered "the orbit of the legal system of rule of law, administration according to law". On the protection of citizens, legal persons or other organizations of the legitimate rights and interests, safeguarding and supervising the exercise of administrative power, has very important significance to improve administrative efficiency, administrative organ and judicial organ of the correct position, which has long been the "official is more noble than the people", "people do not tell an official" feudal foolish ideas of oppression the working people, truly democratic freedom rights, to achieve a "major breakthrough people can tell officer" of the legal concept. But the law also need practice to prove the integrity and its feasibility. That the trial practice of more than ten years, the author think is "administrative procedure law" adjustment of the dispute, in many respects, exposed the immaturity, specific performance in:
3.1In the link of registration and acceptance, the conflicting

(1) the relevant administrative reconsideration procedures (pre conditions) new problems. Regardless of is the old "forest law" fourteenth article or revision (1998) of the "forest law" article seventeenth, paragraph third shall be so: the parties accept the decision of the people's government, the date of receipt of the notification within a month, to the people's court. No provisions for administrative reconsideration as precondition. October 1, 1991 promulgated the "administrative procedure law" thirty-seventh stipulates: "the administrative cases belong to the people's court accepted range, citizens, legal persons or other organizations may apply for reconsideration to the administrative organ at the next higher level or the provisions of laws and regulations, the administrative organ for reconsideration, refuses to accept the decision, bring a suit in a people's court; or file a lawsuit to the people's court." according to this article, the parties can have a choice, not only can apply for administrative reconsideration, the reconsideration and suit only, can not directly after reconsideration. The article also provides: laws, regulations shall first apply to the administrative organ for reconsideration, the reconsideration decision, bring a suit in a people's court, in accordance with the provisions of laws, rules and regulations. While the "Administrative Reconsideration Law" was October 1, 1999 to execute, then before and "administrative procedure law" promulgated this time parties should do, the court how to operate? Even when the "Regulations" the administrative reconsideration, the regulations also did not make the corresponding provisions.

   When the "administrative review law" after the enactment of the law, sixth of the fourth paragraph of the "natural resources made by the executive authorities of the recognition of the land, minerals, water, forests, mountains, grassland, wasteland, beach, sea and other ownership or use right is dissatisfied with the decision of the citizen, legal person or other organization that, in accordance with the this law, apply for administrative reconsideration." (Note: is it may apply for reconsideration). The article thirtieth also stipulates: "citizens, legal persons or other organizations that ownership specific administrative acts infringe upon their have to obtain land, minerals, water, forests, mountains, grasslands, waste, beaches, waters and other natural resources or the right to use, shall first apply for administrative reconsideration; if the party refuses to accept the the administrative reconsideration decision, it may lodge an administrative lawsuit to the people's court. According to this article, if the parties accept the decision of the people's government, shall first apply for administrative reconsideration, refuses to accept the administrative reconsideration, administrative litigation to the people's court. Make a difference to the same content restrictions, it seems, different period, different legal even between the same laws of different provisions are inconsistent, the forest ownership dispute cases on file standards difficult to fit in.

(2) inconsistent provisions filed a lawsuit against the deadline. "Forest law" provisions of litigation parties of the period is one month. "Administrative procedure law" thirty-eighth paragraph second: anyone who refuses to accept the reconsideration decision, may in the reconsideration decision bring a lawsuit to a people's court within fifteen days. Rule thirty-ninth: citizens, legal persons or other organizations directly file a lawsuit to the people's court, shall be made within three months it knows that a specific administrative act. In the "before the implementation of Administrative Reconsideration Law" (not the provisions of administrative reconsideration behavior is the precondition of the administrative litigation brought the dispute of mountain forest ownership), if the parties directly to the court, if applicable "administrative procedural law" in article thirty-ninth, which obviously and the "forest law" provisions of contradiction.

3.2The people's court in the trial results (including the court of second instance) only in the procedure and not the referee in the entity, and it is not conducive to the settlement of disputes, easily lead to litigation cycle

The people's court dispute cases in the application of "administrative procedure law", the result is nothing more than two kinds: either to maintain government decisions, either withdrawn or partially withdraw, at best, only the defendant (government) to make the decision. But in whatever way closed, once the appeal, the court of second instance only in accordance with the "administrative procedure law" article sixty-first processing procedures on the (decision), neither mediation, also can not make substantive revision. If the court of second instance ruled that the revocation of a decision, remanding, is entering a new round of the procedure. If the retrial revoke the decision limit, to make the decision, the parties to decide and disaffected, enter the proceedings, again so reciprocating, litigation in circulation, disputes continue, unless the administrative relative person appeal, otherwise, the endless. Is not difficult to imagine there are many situations may cause litigation cycle, this is the inevitable consequence of court can only make the resulting program.

There is such a typical case: in 2001 Jiangxi Lao Qiao Zhen Shan Tou Cun, Jishui county (hereinafter referred to as the mountain village) and the all day long Gang Cun Wei Yao Jia Cun group (hereinafter referred to as Yao Jia Cun) in two village at the junction of "Xian Cha Temple" in the dispute, the people's Government of Jishui county has made Ji county government issued [2001] nineteenth signal processing the dispute will be decided, mountain forest, forest ownership is the right to give Yao Jia Cun all. Shan Tou Cun dissatisfied, to appeal to the county court, county court in the procedure illegal revocation No. 19 treatment decisions, and decision by the people's Government of Jishui county to make the decision. The county government received after the verdict, according to the law to make Jishui County [2002]23 treatment decisions, the right to ownership dispute mountains still Yao Jia cun. Shan Tou Cun and refuses to accept, in 2003 September to appeal to the county court, county court upheld the defendant Jishui County [2002] twenty-third treatment decisions. Shan Tou Cun again not satisfied, the prosecution to the Ji'an City Intermediate People's court, in 2004 May, City Intermediate People's court revoke the county court, by the people's Government of Jishui county to undertake a specific administrative act, but the county government was reluctant, so far failed to make the decision. Now the two village is still the case go in between the government and the courts, produce the contradiction between the government and the courts the two party investigators, such as fire, similar cases too numerous to mention. If the administrative organ to make based on the same facts and reasons and the original specific administrative behavior basically the same specific administrative act, the people's court shall be in accordance with the "administrative procedure law" article fifty-fourth (two) and the provisions of article fifty-fifth of the decision to withdraw (this provision of repetition). And according to the provisions of article sixty-fifth paragraph third of the processing. And the fifty-fifth only provides: the people's court decision defendant to undertake a specific administrative act of the defendant, the specific administrative act shall not be made based on the same facts and reasons and the original specific administrative behavior is basically the same, it is not difficult to see: the administrative organ, the people's court to withdraw, withdraw, as the withdrawal, who made between the court and government officials? Once you enter this vicious spiral state, not only the parties v.tired overwhelmed by economic burden on the courts and administrative agencies, is also feel weak and tasteless, is endowed by law to the people's Court of second instance court jurisdiction provisions. In the above case, two village to fight the lawsuit, round-trip between the government and the courts had run for five years, did not have the money to the village, the villagers collected money demand, people complain, village cadres Han Lei, is: do you exercise your right of administration, I use my jurisdiction, tube he disputes have complete, only the parties suffer unspeakably.

3.3The inevitable third people also led to one of the internal circulating procedure

We know the forest ownership dispute is two party or two party or parties to the dispute over ownership of forests caused by. The government is right to one side (or both), make sure the other party (or both) facing the loss of all or part of the rights, actually has the meaning of the civil code third (belonging to a direct interest or the third party with independent claims on the processing results), this is the dispute of mountain forest ownership administrative jurisdiction case is different from the general administrative cases (administrative organ makes an important symbol of administrative penalty cases). General administrative cases, administrative relative person only one (or a person), such as the decision to industrial and commercial administrative processing, administrative detention decision, not exist and the person being punished third related rights. This feature, destined to have the party lost the right after the appeal, thus causes the new administrative litigation.

4The dispute of mountain forest ownership by the civil law

From the above several aspects of the image and the new problems, "administrative procedure law" for trial of dispute cases, indeed there are contradictions to judicial organ or administrative organ itself can not solve, to thoroughly solve the administrative organ and judicial organ mutual play rubber ball phenomenon, protect the lawful rights and interests of the parties, the author think, the dispute case shall apply to the civil procedure law procedure for handling according to law. Forest ownership is also a kind of property right, "civil law" article seventy-fourth, paragraph (a), of collective organizations of the working masses property owned collectively by the working masses, including the law of collective owned land and forests, mountains, grasslands, uncultivated land, beaches and other. At the same time, the eighty-first section third, paragraph fourth of the forest as a kind of property ownership law, also the suitable adjustment of contract law. So, by the civil law to adjust.

According to the law stipulates, processing to the dispute mediation principle, is conducive to the dispute settlement, to avoid litigation cycle.

The government can do, but should be regarded as a kind of arbitration, the parties to arbitration, can be sued in civil procedure, thus avoiding the formation of effectiveness against government and court dispute processing, by the National People's Congress in June 27, 2009 ninth session of the "rural land contract disputes mediation and Arbitration Law" can be said to be a a good start.

Author brief introduction: Zhang Shuihua, male, graduated from junior college law, has long been engaged in forestry work in the township, to participate in the reform of forestry property right system, the people's Government of Jishui County of Jiangxi province to mediate the dispute of mountain forest ownership director of general office.