In the administrative trial practice, often appear the administrative dispute and civil dispute interweave together case. Handling this kind of case is more complex, difficult, and easy to cause disputes. For such cases, if not handled properly, will not only affect the efficiency of the litigation, waste of judicial resources, but also can appear administrative and civil judgement contradictory, directly affect the court's judicial authority. At present in our country the three big procedural framework, strengthening the research on cross of administrative litigation and civil litigation, interleaved properly solve the problem of administrative dispute and civil dispute, way of treatment to explore solutions to the administrative dispute and civil dispute interweave problems, has the important meaning.

A general relation, administrative litigation and civil litigation

Administrative litigation is one of the three major litigation system in our country, administrative litigation and civil litigation has the close relation, but also have a certain difference. From the relationship between administrative litigation and civil litigation, before the promulgation and implementation of the administrative procedure law of our country, the administrative litigation is initially prescribed in the civil procedural law of administrative litigation and civil litigation, then mixed together. Such as the PRC Civil Procedure Law enacted in March 8, 1982 third "(Trial)" the provisions of the second paragraph: "the law by the people's courts in the trial of administrative cases, apply the provisions of this law." With the enactment of administrative procedure law, administrative litigation, separated from civil litigation, became an independent litigation. Separated from civil litigation in administrative litigation is illustrated by the fact that, as an independent litigation system of administrative litigation, but the two have much in common in the litigation principle, procedure and system. From the trial practice, there are some administrative dispute and civil dispute interweave cases cause interleaving of administrative litigation and civil litigation, in resolving the dispute, not simply the application of administrative procedure law and the civil procedure law, we must combine the two cases. Such as "the Supreme People's Court on the implementation of 'of the people's Republic of China Administrative Procedure Law' interpretation of several issues" ninety-seventh stipulates: "the people's courts shall, except in accordance with the administrative procedure law and the interpretation, can use the relevant provisions of the civil procedure." This also to a certain extent on the close relationship between administrative litigation and civil litigation.

However, administrative litigation and civil litigation are two different procedure, there are some differences between the two:

1, to solve disputes of different nature. Administrative litigation is administrative dispute, the administrative organs and their staff in the administrative process because of the exercise of administrative powers and citizen, legal person or other organization disputes. Civil procedure is to solve the civil dispute, namely equal natural persons, legal persons, other organizations between between between, and between them and human body, property disputes.

2, between the main body status of. In the dispute, the legal status of administrative organs and citizens, legal persons and other organizations of inequality, is a relation of management. In the civil dispute, both parties dispute between the status is equal.

3, action principle is different. There are some common principles of administrative litigation and civil litigation, such as taking facts as the basis, take the law as the criterion, withdrawal and public trial, final, etc.. However, there are large differences between the principle of action. These principles are: first, the principle of disposition. In administrative proceedings, as the administrative organs shall not enjoy the rights of disposition, and in civil proceedings, the parties have the entity and the procedure of the disposition, the plaintiff may change or give up their litigation request, the defendant can also give up, transfer, change their substantial civil rights. Second, about the mediation and counterclaim principles. According to the provisions of the civil procedure law, the people's Court on a voluntary and lawful basis. According to the provisions of the administrative procedure law, the people's court administrative cases (except for administrative compensation cases) does not apply mediation. In civil proceedings, can counterclaim. Cannot apply the counterclaim principles in administrative litigation. Third, about the principle of burden of proof. In civil litigation, the allocation of the burden of proof of principle who advocate who burden, but in administrative proceedings, the burden of proof is required the defendant of administrative organs. Fourth, about the trial principle. In administrative proceedings, the people's court shall examine the legality of specific administrative acts being sued, not review the reasonableness, not subject to litigation request limit. The review by the people's court in civil cases is to review its legitimacy and rationality, review, and be subject to litigation request limit.

4, the scope of accepting cases of different. Civil law of civil litigation scope did not make provisions, in other words, as long as it is a civil dispute, can generally be ultimately resolved through civil litigation mode. The administrative litigation law made strictly limited the scope of accepting cases. Nine according to the administrative procedure law stipulates that the eleventh listed shall accept the case, generally confined to the infringement of citizens, legal persons or other organizations of personal rights, property rights cases. Article twelfth lists the four kinds of cases can not be accepted.

5 different status in litigation, the parties. In administrative litigation, the subject qualification of party is constant, the defendant can only be made the specific administrative act, the plaintiff is that citizens, legal persons or other organizations the sued specific administrative acts infringe upon their legitimate rights and interests. In civil litigation, the status of the parties is not constant, the defendant may put forward counterclaim, counterclaim plaintiff becomes, and the complaint in the plaintiff to the defendant in a counterclaim. In addition, third party system in the administrative litigation and civil litigation is very different. In administrative proceedings, third people and has interests in a specific administrative act, the citizens, legal persons or other organizations to safeguard their legitimate rights and interests and to participate in the proceedings. In administrative proceedings, the difference between third people did not have the independent request power and without independent claim. In civil litigation, the third refers to the controversy of the plaintiff and defendant in litigation that has the independent right of request, or having no independent claim, but the outcome of the case and the legal interest relations, and to participate in the ongoing proceedings to the people.

6, under the jurisdiction of different. In civil litigation, the general principle of territorial jurisdiction is the plaintiff to the defendant, the contract dispute or infringement dispute lawsuit, be subject to the jurisdiction right. The jurisdiction of administrative litigation in general by the original specific administrative acts of administrative organs of local people's court, the defendant the plaintiff principle in special circumstances, such as administrative litigation law the eighteenth regulation:"Compulsory administrative measures restricting freedom of the person may initiate litigation, where the defendant or the plaintiff is the jurisdiction of the people's court.Here"The plaintiff's residence", including the plaintiff's domicile, habitual residence and restriction of personal freedom.

7, about the limitation of action. The provision of the administrative litigation law directly file a lawsuit to the people's court, should know or should know the specific administrative acts of the date of 3 months, if not to prosecute to request the court to protect the right to lose. For anyone who refuses to accept the reconsideration decision, bring a suit in a people's court in within 15 days as of the date of expiration of the book or in the review period the day of receiving the reconsideration decision, if not to prosecute, the parties also lost the right to request the court judicial protection. The general principles of the civil law to a people's court for protection of civil rights during the period of limitation of action is generally 2 years.

8, the trial procedures of different. In administrative proceedings, the people's courts shall apply the ordinary procedure, only the handling of administrative cases, and can not be dealt with by a single judge and referee. In civil proceedings, both ordinary procedure, also has simple procedure. According to the provisions of the civil procedure law, the simple civil cases fact clear, the relationship between the rights and obligations are clear, the controversy is the basic people's court and the court he sent the application of summary procedure, hearing.

9, the execution of a program. (1) the executive body of different. The executive body of the civil litigation is to the people's court. The subject of administrative procedure of execution may be is the people's courts, can also be undertaken the specific administrative act. (2) the execution of different object. Civil execution is only limited to the physical object of the action, action, not including personal. The object of administrative litigation execution can be physical, behavioral, and can also be the person. (3) execution measures. The civil suit for enforcement measures do not vary with the identity of the respondent. In administrative litigation, if the applicant is a relative of administrative management, use and civil action to carry out similar measures, if the respondent is undertaken the specific administrative act, implementation measures different from the applicant is a citizen, legal person or other organization implementation measures, generally only the transfer of the deposits, fines and justice proposed three measures.

  The two main types, civil and administrative interwoven.

Civil and administrative interwoven situation many, mainly is mainly composed of administrative act, administrative adjudication, administrative registration, administrative licensing behavior of lead.

Goes 1, administrative confirmation, administrative litigation and civil litigation behavior caused by the.

Administrative confirmation isUnilateral legal acts of the administrative subject has the relative parties to confirm or deny the legal status and rights and obligations.The citizen, legal person or other organization, the legal relationship between the legal status or the legal fact confirmation and screening, and the creation of the new relationship between rights and obligations. Administrative act mainly includes the ownership of the work-related injury confirmation, confirmation, disability rating, fire accident responsibility confirmation, traffic accident responsibility confirmation,Confirm the liability of medical malpractice identification, the quality of the productsEtc.All belong to the administrative act.Administrative act is the object of legal status between two or more parties, the legal relationship and legal facts. The main form of administrative confirmation confirmation, confirmation, including proof, identification. Among them, the confirmation is the individual or organization's legal status and rights and obligations, such as issuing land use permits, housing all the warrants. That is a legal position, the person or organization has the rights and obligations of the events that is consistent with the legal requirements and must admit. For example, to terminate the contract validity confirmation of traffic accident responsibility confirmation. That is the administrative subject to other people clearly proves the legal status, rights and obligations of a state or object, such as a variety of degree, degree certificate, notarized. Authentication is the administrative subject to review the legitimacy of some of the legal relationship, confirm or prove its effectiveness, such as the administrative department for Industry and Commerce on economic contract verification etc.. Administrative confirm behavior easily intertwined cause of administrative litigation and civil litigation. As a defendant, in the traffic accident was driving a B, a civil lawsuit, a B for compensation. And a B is the responsibility of traffic accident of the public security organs that may initiate administrative proceedings, the interleaving is administrative litigation and civil litigation.

Interleaving of administrative litigation and civil litigation, administrative adjudication by 2.

 Administrative adjudication isAdministrative adjudication refers to the administrative main body authorized by law, examine the specific civil disputes between equal entities, and the administrative management activities are closely related to the specific administrative act, and make a decision.The administrative ruling parties occurred between object is closely related to administrative management activities of civil disputes.Administrative adjudication is different from ordinary concrete administrative behavior, it has quasi judicial.Object administrative organ may conduct administrative adjudication is specific, not involved in all the civil field. In general, only closely related in civil disputes and civil case management, administrative authority to rule on the dispute. According to the existing legal provisions, the administrative dispute and civil dispute administrative adjudication triggered by interleaving, mainly in intellectual property adjudication, housing units ruling, the public security administrative punishment collateral security award of compensation, environmental administrative penalty incidental environmental award of compensation of medical disputes, arbitration, administrative punishment with health compensation awards such as disputes, and the administrative organs in violation of law, the parties to the seed, forest law, grassland law of the mineral resources law of administrative penalty and ordered the compensation for economic loss in a dispute. From the types of administrative adjudication, administrative adjudication, including the following:

 1, ownership dispute adjudication, refers to the parties for a property dispute the ownership or use right of ownership, ownership dispute including grassland, land, water, beaches and mineral and other natural resources, the parties may apply to the relevant administrative organs to request confirmation. For example, according to the "management law" provisions of the people's Republic of China land sixteenth: land ownership and use rights disputes, settled by the parties through consultation; consultation fails, handled by the people's government. Disputes between units, handled by the people's governments at or above the county level; between individuals, between individuals and units of the dispute, by the Township People's government or the people's government at or above the county level. The parties accept the decision of the people's government concerned, can be received treatment decision within thirty days from the date of notification, bring a lawsuit to a people's court. In the dispute adjudication, the parties can bring a civil lawsuit to the people's court dispute, the people's Government of the ruling may also result to the people's court in the administrative proceedings, cross and administrative litigation and civil litigation.                                                                                

⑵, infringement dispute adjudication, refers to a party's legitimate rights and interests of the other party's infringement, infringement of the parties may request the administrative authority shall award. Infringement dispute adjudication, its purpose is to stop the infringement, protect their legitimate rights and interests. According to "trademark law" provisions of article fifty-third of the people's Republic of china:"One of the trademark infringement behavior listed in the fifty-second article of this law, disputes, settled by the parties through consultation; unwilling to negotiate or fail to reach an agreement, the owner of a registered trademark or any interested party may bring a lawsuit to a people's court, or request the administrative authority for Industry and commerce. The administrative authority for Industry and commerce, that the infringement is established, shall be ordered to immediately stop the infringing act, confiscate, destroy the infringing goods and specially used to manufacture the infringing goods, counterfeit registered trademark signs, and may also impose a fine. If a party refuses to accept the decision on the treatment, can be fifteen days in accordance with the "administrative procedure law" of the people's Republic of China to the people's court from the date the notification is received; where the infringer neither brings a suit nor complies, the administrative department for Industry and Commerce may request the people's court for compulsory execution. The administration departments for Industry and commerce according to the request of the parties, mediation may be conducted on the amount of compensation for infringement of the exclusive right to use a trademark; if the mediation fails, the parties may apply to the people's court in accordance with the "PRC Civil Procedure Law"." According to this provision, if the administrative department of industry and Commerce in the determination of infringement, and trademark infringement after processing, administrative behaviors identified by the infringer for administrative mediation fails and filed a civil infringement litigation, administrative action that the infringer is not because of administrative behavior and administrative litigation, the interleaving is administrative litigation and civil litigation.

⑶, damage compensate dispute ruling. Refers to a party's legitimate rights and interests of the other party against offenders, request compensation dispute, may request the administrative ruling. This ruling mainly exist in the management of public security, food hygiene, environmental protection, medical and health, the quality of the products, social welfare and so on. According to the "environmental protection law of the people's Republic of China stipulates that the forty-first":"Cause environmental pollution, has the responsibility to eliminate the hazards, and the unit or individual that suffered direct damages. The liability or amount of compensation may, at the request of the parties concerned, processing by the competent administrative department of environmental protection or other in accordance with the law, exercise supervision and control of the environment department, if a party refuses to accept the decision on the settlement, can sue to people court. The party may also bring a suit directly to a people's court." According to this provision, environmental pollution caused by the victim can request injurer will make compensation for the economic losses directly file a civil lawsuit to the people's court, or bring an administrative lawsuit to the people's court is the competent administrative department of environmental award, appear thereby interleaving of administrative litigation and civil litigation.

⑷City, house demolition compensation dispute adjudication, refers to the demolition and the demolition or relocation of people, housing tenant was taken with no minimum compensation settlement agreement, the client application, the housing units management decisions. For example, according to the "Regulations" City Housing Units management the sixteenth stipulation: "the demolition and the demolition or relocation of people, housing tenant was taken with no minimum compensation settlement agreement, the client application, the housing units management decisions. House demolition management department is to be taken, by the people's government at the same level award. An award shall be made within 30 days from the date of receiving the application. Parties to accept the award, to a people's court within 3 months from the date of receipt of the ruling is. Demolition in accordance with the regulations have been taken to give people the monetary compensation or resettlement housing, the flow space, the proceedings did not stop the demolition of the implementation." Acceptance of housing demolition, compensation, resettlement cases, the Supreme People's court complex [1996]12 "on the admissibility housing demolition, compensation, resettlement cases the reply" stipulates: "a citizen, legal person or other organization, the people's government or city houses the main pipe administrative departments to the demolition of housing, compensation, resettlement and other issues against the ruling, according to the people's court proceedings, the people's court shall accept the case as an administrative case. Two, the removal of buildings housing compensation, resettlement, dispute, or the parties reach an agreement, a party or parties renege, without administrative agency adjudications, only housing compensation, resettlement and other issues, according to the people's court proceedings, the people's court shall be admissible in civil cases." According to the above provisions, the same housing demolition, compensation, resettlement in different conditions, respectively, become the administrative lawsuit and civil lawsuit, goes to administrative litigation and civil litigation.

Interleaving of administrative litigation and civil litigation, administrative registration actions caused by the 3.

Administrative registration refers toAdministrative registration is the administrative authority in accordance with the application of the parties concerned, the civil legal relations between the parties to be recorded in the state, an administrative action to be recognized and prove.. For example, the industrial and commercial registration, housing property registration and residence registration. At present, because the administrative registration actions of civil and administrative interwoven situation many, mainly is:   

1, housing property registration. In the field of civil law, after the implementation of some civil behavior, such as the transfer of immovable property, civil rights is not due to the effective implementation of civil behavior made and natural, must get confirmed some administrative behavior. Such as "real estate management law" of the people's Republic of China City Housing thirty-fifth stipulates that: "the real estate transfer, mortgage, the parties shall handle the registration according to the provisions of chapter fifth." And the sixtieth section third "real estate transfer or change, shall apply for real estate registration of change to the people's government at or above the county level real estate management departments, with the change of housing all of the books to the people's government at the same level of land management departments to apply for the registration of land use rights changes, the land administration department of the people's government at the same level verification, by the people's government at the same level replace or change the land use right certificate". Housing sales contracts signed, the ownership of the house and the house is not for sale of land use rights to contract and houses and natural transition, must be approved by the housing management authority for registration of change of ownership registration, housing ownership is transferred; and housing land use right to the people's government at the same level changes after metastasis. Therefore, the housing property registration in case the holder, all of the housing with the card that their civil rights, civil lawsuit, and the permit issued by the interested party and against issued housing all of the behavior of administrative litigation, goes to civil litigation and administrative litigation.

 ⑵, the pre-sale of commercial housing mortgage registration. A lot of the pre-sale of commercial housing mortgage in China's real estate market.According to the Ministry of construction "CityProvisions of the real estate collateral management approach "article third paragraph fourth, commercial housing mortgage loans, refers to the purchase in the first phase of the pay Fangjiekuan, loans from banks for the payment of the remaining mortgage, commercial housing will be purchased as collateral for bank loans to repay the loan guarantees.According to the "City real estate management law" stipulates that the sixtieth, real estate mortgage, should be provided to the local people's governments at or above the county level departments handling mortgage registration. At the same time, the "security law" provisions of article forty-first, the parties to the mortgage law the forty-second regulation of the property, it shall register the mortgaged property, the mortgage contract shall become effective on the date of. Thus, the pre-sale of commercial housing mortgage is a mortgage registration effectism, only pre-sale of commercial housing mortgage and mortgagee shall go through the formalities of registration, the pre-sale of commercial housing mortgage has the legal effect. Therefore, without the chattel mortgage registration, if the pre-sale of commercial housing people need housing loans to the pre-sale of commercial housing mortgaged, and mortgage registration, at this time, when the purchase is not in accordance with the contract to fulfill the repayment obligations, the mortgagee will be in the pre-sale of commercial housing mortgage contract civil lawsuit, but as a pre-sale of commercial housing pre-sale to mortgage registration of real estate management illegal to bring an administrative lawsuit, goes to administrative litigation and civil litigation.

⑶, mortgage registration of land use rights. In the registration of land use rights mortgage registration organs exercise their functions and powers, the administrative law, resulting in the same land use rights mortgage repeat, repeat registration, the parties can not be exercised in the mortgage situation civil lawsuit, also may bring an administrative lawsuit to repeat registration, goes to administrative litigation and civil litigation.

⑷Administrative registration, the ownership of the land. "The PRC Land Management"Article eleventhRegulation: "of all the peasant collective land, by the people's government at the county level shall register, issue a certificate,Confirmation of the ownership. Peasants collectively all of the land for non-agricultural construction, made by the people's government at the county level shall register, issue certificates to confirm the right to use land for construction. Units and individuals to use state-owned land, by the people's government at or above the county level shall register, issue a certificate, confirmation of the right to use; the use of the central state organs, the registration of state-owned land to license issuing organs, shall be determined by the state council." According to the above provisions, if the owner or user of the land to file a civil suit against the tortfeasor, and violations of the land that the illegal administrative registration, administrative litigation, requesting revocation of the certificate of ownership of land or the use of warrants, there are administrative litigation and civil litigation.

⑸, the marriage registration. In the marriage registration, marriage registration in both men and women to the marriage registration authority for the registration of marriage, a party to discord filed a civil lawsuit, the court for a divorce, couples have not broken the court thinks, the judgment does not divorce. If the parties to the marriage registration organ's illegal behavior, administrative litigation, requesting revocation of the marriage registration, interleaving appeared in civil litigation and administrative litigation. Moreover, the registration of marriage between men and women, after the death of a party, successor for inheritance disputes, the deceased spouse litigation request, inheritance, and other interested parties that the deceased spouse cannot inherit, false grounds to bring an administrative lawsuit in the marriage registration, marriage registration for cancellation, the interleaving is administrative litigation and civil litigation the.

Interleaving of administrative litigation and civil litigation, administrative license behavior caused by the 4.

According to the "administrative licensing law" articleTwoThe provisions on administrative licensing, refers to the administrative organs according to the citizen, legal person or other organization to apply, upon examination according to law, shall be permitted to engage in certain activities.Because the associated administrative organs of some administrative act and civil subject qualification, directly determine its non participation in civil activities and civil action subject qualification, establishment, cancellation, the legal representative for the business sector to make market main body of people change registration in accordance with authority and revocation of the business license and make market main body behavior, because of the direct relates to civil main qualifications made, obtain, change or eliminate eliminate problems and legal representative qualification, if the administrative relative person or relevant person refuses to accept the administrative behavior of administrative litigation, and the civil subject to the administrative action for a civil dispute led to a civil action, the cross will appear administration litigation and civil litigation. Moreover, Zhang and Yang for mining rights dispute, Zhang for its mining license filed a civil lawsuit, asked yang to stop infringement. While Yang is to mine management department issued the mining license on the grounds of unlawful, administrative litigation, requesting revocation of the mining license, the interleaving is administrative litigation and civil litigation.

Trial three, current situation and Countermeasures of civil and administrative interwoven.

At present, the people's court for administrative dispute and civil dispute interweave case processing is not consistent. Some of the civil court, of which the specific administrative act is involved, the administrative organ to solve, the court the administrative decisions and administrative confirmation documents such as legal basis, directly to the civil judgment. Some encountered such a situation in the civil litigation, civil litigation is aborted, the final judgment, administrative litigation is made, and then restore civil cases. Some of the administrative court, the administrative dispute and civil dispute resolved through administrative litigation with incidental civil action. And so on, considerable confusion.

Principle four, civil and administrative interwoven.

Because administrative litigation and civil litigation procedure after all belong to different category, therefore, in the treatment of civil and administrative interwoven problems, it shall be treated according to the following principles.

 1, the principle of prosecution and admissibility.

 When the administrative dispute and civil dispute case of co-existence, cases of administrative prosecution and admissibility should pay attention to the following aspects:

 1, in civil litigation, the parties to the administrative acts and civil dispute may initiate administrative proceedings, shall be regarded as administrative cases accepted. Because in civil litigation, the administrative act as evidence materials for review, review of civil trial is not the administrative act is legal. In order to guarantee the stability of the authority, the people's court, and effective supervision of administrative act, the administrative procedure act and civil dispute, as long as they comply with the conditions of prosecution, the people's court shall take administrative cases accepted.

 ⑵The people's court in civil litigation, the controversial acts of administrative litigation evidence review shall be recognized, the civil judgment and make already has the legal effect, then, if the administrative act of the parties dispute refuses to accept the administrative proceedings, the people's court shall be for the acceptance of administrative cases. After review, the court if that administrative law, revocation of the administrative act, for the effect of civil judgment, should be carried out in accordance with the procedure for trial supervision procedure.

2, trial principle.

1The general principle of the trial, after the first administration, civil.

The processing results of civil disputes shall be in handling administrative disputes result for the premise, practice"After the first people"In civil litigation, suspend the trial,ByTo restore civil cases of administrative litigation to resolve the dispute after the trial. The cases of civil disputes and administrative disputes exist, but the administrative dispute is the core and basic position, the settlement of civil disputes and administrative disputes resolution depends on the processing, can not be avoided, administrative dispute has pre decided effect to the civil disputes. For example, in the Civil Action Party in administrative acts as the claim is supported by evidence, each other although not explicitly request cancellation of administrative act, but with the behavior of illegal for defense, or even to administrative behavior without objection, but the legitimacy of administrative behavior is difficult to identify, should suspend the civil litigation, inform the parties apply for the administrative organ potency in problem solving administrative disputes or bring an administrative lawsuit. If you do not consider the administrative dispute, the cancellation of administrative behavior or confirming the illegality, directly influence the validity of civil judgment. Common in the administrative license, administrative punishment, administrative responsibility etc.. Such as: Xianglinquan disputes, the plaintiff to the defendant building effect of ventilation and lighting grounds for removal of obstacles, the defendant, to building planning permission, construction permits, act for defense, the administrative license is valid is the primary problem to solve, otherwise the litigation to proceed.At the same timeThe act of administrative license, or administrative act gives the civil subject to certain qualifications of civil subject, if the disputes on the qualifications of civil subject, must in advance to confirm the act of administrative license or the administrative legality. Because of the civil litigation is affected by the administrative litigation, civil litigation and administrative litigation should not continue, can proceed, through administrative proceedings to resolve administrative disputes, the administrative decision, then return to civil dispute case.

　  Also, becauseTrafficTort litigation accidents mentioned, responsibility is the premise of civil compensation responsibility, parties to the dispute, constitutes the prerequisite of the civil case. Regardless of the administrative license or the responsibility of administrative organs in the use, is a matter of administrative power into the processing, administrative authorities will, are real review of administrative acts, authority, legal authority can revoke only by the statutory procedures, even in civil litigation is also around the administrative dispute issues, while the effectiveness of administrative behavior of public law, and keep out the land ownership dispute, to interfere with the action of common practices such as: a land use permit to hold to build houses on the homestead, B to the government has the dispute of land ownership disputes to the right to use all of its decision to stop by, a construction has been built, and remove the housing, and a civil lawsuit, request to remove the obstacles, compensate for the losses. Litigation in both provide land use certificate and the government made the decision to land ownership disputes the claim, the court can not straight to choose. In accordance with the land administration law and the relevant judicial interpretations, relates to land tenure dispute applicable administrative procedure, must be made by the administrative organadvance rear can bring an administrative lawsuit, land tenure dispute does not belong to civil law category, the prerequisite is to remove the obstacles, should suspend the civil litigation, to restore to hear the dispute handling right after.

⑵First, civil, administrative special trial principle.

The processing results of administrative dispute in civil litigation shall be the premise, practice"Our ancestors". In such cases, civil dispute is the focus and core of common concern of administrative and civil, it determines and influences the administrative disputes, administrative behavior between before the controversy has existed in the equality of the subject in civil cases the plaintiff and defendant, whether administrative or civil prosecution are attributed to the purpose of the civil rights struggle. The mainIn theAdministrative registration, patent and trademark and other intellectual property rights of the administrative act and civil cases.Such asThe Ministry of construction "city housing management authority in the registration procedures" provisions of the second paragraph of article seventeenth:"Apply for transfer of registration, the obligee shall submit the certificate of house ownership and related contracts, agreements, certificates and other documents.""Interim Measures" City Property Management twentieth also required:"Due to the housing property disputes, the parties concerned may through consultation, can also apply for the real estate arbitration institution for arbitration or appeal to the court to award."The above provisions only to the administrative organ for submission formType of review, not given to the ownership of housing management authority is clear, the transfer of the validity of the contract, the transaction behavior whether to have the substantive right defect, we can not determine their authenticity and validity.In such cases, as the housing transfer registration of evidenceContract, agreement, certificate and other documentsThe legitimacy and effectiveness, is a prerequisite to determine the legality of the housing registration.The core of the caseIsHousing ownership of property right, disputes arising from civil disputes between the parties, or even in the administrative proceedings the parties in civil rights and obligations of the dispute inevitably throughout, even if still behavior, property disputes, it is necessary to guide the parties to determine the ownership of the building through civil litigation. IfPartyAdministrative litigation and administrative organ of the issuance of real estate certificates, shall suspend the trial of administrative cases, restore hearing in the housing management authority in the referee after the civil dispute, and the judgment of factsAdministrationThe basis of judgment.

    ⑶Administrative, civil, together with the principle of the trial 

    The trial is called together for administrative dispute and civil dispute interweave cases, peopleThe court in the trial of a case, according to the application of the parties, by the same trial organization according to the different procedure to interweave together another case, hear and decide a judicial activity. All administrative, civil trial, including administrative action as the main body, solving the civil disputes, including civil lawsuits as the main body, together with the trial of administrative disputes. It should be said, administrative litigation with incidental civil action belongs to administrative, civil trial in a way together. The judicial interpretation of the Supreme People's court has been proposed with hearing problems, the real solution for the judicial practice, laying a good foundation of civil and administrative interwoven problems.

Five, administrative litigation with incidental civil action

1, the legal basis for the administrative incidental civil action and significance

Our country at present about the administrative litigation with incidental civil action direct legal basis is the Supreme Court "on the implementation of 'issues' Administrative Procedure Law of the people's Republic of China" the interpretation of the provisions of article sixty-first: "the defendant as the principal of equality between civil dispute ruled illegal, civil dispute to request the people's court to solve related civil disputes, the people's court may be heard." From the judicial interpretation, the people's court when dealing with administrative dispute solving the civil disputes need to have the following three conditions: first, there are two interrelated disputes, namely, civil disputes and administrative disputes, administrative disputes mainly administrative adjudication agency based on trigger; second, handled by the same court; third, the request of the parties based on; fourth, administrative disputes and civil disputes are the people of the scope of the court. Therefore, administrative litigation with incidental civil action has a strict conditions, the judicial interpretation is a people's court trial of administrative cases on the basis of.

 In our country, the administrative dispute and civil dispute interweave together case, has the important administrative incidental civil lawsuit system. Mainly is: first, the implementation of administrative incidental civil lawsuit system is advantageous to enhance the lawsuit efficiency. According to the usual practice, the court for administrative dispute and civil dispute interweave case: "after the first people", that is to resolve the dispute, and then solving the civil disputes. This trial has the advantages of administrative disputes and civil disputes are heard by a different division, could reflect the characteristics of different action, different litigation value. But it is easy to affect the efficiency of the litigation, waste of judicial resources. However, if the court civil dispute in administrative litigation incidental after trial: is conducive not only to improve the efficiency of the proceedings, but also conducive to alleviate the burden of the court.

(a) the necessity and feasibility of administrative incidental civil lawsuit

The establishment of administrative litigation with incidental civil action, is the first procedure benefit principle requirements. In order to realize the procedural benefit, must reduce litigation costs, such as shortening the cycle, simplify procedure. The second is to ensure the authority of the court. Judicial authority refers to the judicial organs shall have the authority and credibility. Mainly embodies the judicial authority is the judicial organs to make decisions for the final decision. However, meet the eye everywhere to make between the different courts in judicial practice contradictory verdicts or within the same court different decisions of the trial court conflicting phenomenon. The court referee contradictory situation often occurs in the administrative dispute and civil dispute related cases, so we advocated that the strong correlation between civil and administrative disputes with hearing, administrative litigation with incidental civil action is a good solution. Once again, the drawbacks of existing solutions to the necessary incidental civil action. Due to the lack of legislation and theoretical differences, different courts in the judicial practice of administrative dispute and civil dispute related cases act as one pleases. In the administrative dispute and civil dispute related cases, the surface is the administrative relative person refuses to accept a specific administrative act, but behind the administrative dispute is a civil dispute, administrative relative person to bring an administrative lawsuit is to solve civil disputes. If the court only review the legality of administrative acts and make a judgement on the civil dispute ignore, cannot completely solve the disputes between the parties, and the fact that the court if we put aside the civil dispute between the parties is not good enough to solve administrative disputes, the court to solve administrative disputes on the fringe of the settlement of civil disputes is worth considering the.

Administrative litigation with incidental civil action is not only necessary but also feasible. In fact, in the administrative dispute and civil dispute related cases, courts in the trial of administrative dispute and civil dispute has been on the trial, because the court in the process to review the legality of administrative act can not ignore the civil dispute between the parties. With the housing property registration administrative cases, when we open the court verdict can see judgment almost completely surrounds the plaintiff and the third person (the other party housing property disputes) housing property disputes between the plaintiff and the third person, providing evidence is the main property rights to housing as the center. Both sides tried to prove that in the process of administrative proceedings is oneself to the dispute shall have the ownership, the court during the trial in Civil Dispute Review, however, on the basis of the existing legal provisions, the administrative tribunal of judges are unable to judge the results of civil disputes, is revoked or maintain administrative behavior, civil disputes can not be resolved. There have been attempts to the court of administrative litigation and civil litigation are combined in the judicial practice, administrative incidental civil lawsuit way of handling the civil disputes and administrative disputes associated cases, through this way to solve the problem of administrative litigation in the past ", people can not" completely. (Note: in the "Yuan Yaqin with the Shanghai municipal housing and Land Administration Bureau issuing housing all of the" case, the Shanghai Putuo District people's court made a bold attempt, through administrative incidental civil lawsuit settlement with the sale of housing disputes arising from the case, in the case of the third party in administrative litigation is also as the incidental civil lawsuits. See the Shanghai Higher People's Court: "from the" typical case the court of Shanghai, Shanghai people's Publishing House in 2001 edition, pp. 138-141.)

 

This association is not only reflected in the two kinds of disputes of different nature related, but also request is associated in litigation. The administrative behavior of the administrative organ caused by two kinds of disputes of different nature, on the one hand, caused the party concerned refuses to accept the administrative adjudication; on the other hand, caused the new civil dispute or to the existing civil disputes occur, resulting in two distinct but interrelated disputes. In addition, the administrative litigation with incidental civil litigation request must have the intrinsic relation. Administrative litigation with incidental civil action in two different but interrelated litigation request, a specific administrative act is to make the administrative relative person refuses to accept the administrative organ considers that the specific administrative acts infringe upon their legitimate rights and interests, request the people's court to revoke or change the specific administrative act has the nature of administrative law litigation request; the other is the administrative relative person thinks that the administrative organs of the specific administrative act on the impact of their civil rights, request the people's court ordered the other party to stop infringement, compensation for losses with the civil law nature of litigation request.

 3 by the party in an incidental civil action to the court

 The people's courts in handling administrative cases, the parties may apply to the civil dispute court to file an incidental civil action. If the administrative proceedings in the litigation process did not request the civil litigation, the court can not actively according to the power of civil dispute to be heard and the referee.

 4 strict procedural restriction

 Administrative litigation with incidental civil action must be in accordance with the "administrative procedure law", "Civil Procedure Law", and the provisions of the relevant judicial explanation. The Supreme Court "on the implementation of {the people's Republic of China administrative procedure law interpretation of several issues") provisions of article sixty-first: "the defendant as the principal of equality between civil dispute ruled illegal, civil dispute to request the people's court to solve related civil disputes, the people's court may also hear. "According to this provision, the defendant has done to the equality between the main civil dispute ruling illegal case, Min Li: the parties to the dispute shall have the right to request the people's court resolved civil disputes. From this stipulation, civil dispute party requests the court to solve civil disputes can only request in the procedure of first instance, and can only be filed in the litigation process of administrative litigation and administrative proceedings or before the end of. In addition, only the parties to the dispute in accordance with the law of civil litigation, and not to file an incidental civil action.

   (three) the range of supplementary civil administration

   From the trial practice, to clearly define the scope of administrative litigation with incidental civil action, otherwise, prone to expand the administrative litigation, civil litigation involved the irrelevant. The range of supplementary civil administration should be limited to the associated with the administrative cases of civil disputes, who with the administrative action in law related civil dispute, can be included in the supplementary range. However, this range can not be too large, otherwise, will seriously impact the civil trial. At the same time, may also result in administrative litigation in "small horse drawn carts" phenomenon. Based on this

 

 

Litigation request, aggravated punishment shall bear the liability for compensation or to increase the amount of compensation. These can all through the administrative incidental civil litigation settlement.

   (four) the administrative incidental civil lawsuit trial

   Administrative litigation with incidental civil action in the trial procedure and purely civil or administrative litigation have obvious differences, mainly in the following aspects:

   1 prosecution and admissibility. In the process of administrative proceedings, the parties may file an incidental civil action -- like, is submitting petition to the people's Court of administrative litigation cases in written or oral form, and provide related evidence material. On the administrative incidental civil lawsuit, the people's court shall carefully review. To meet the requirements, shall accept, also should be a copy of the indictment of incidental civil action on time delivery of the defendant, the defendant shall submit a statement of defence.

 The 2 trial. Administrative litigation with incidental civil action case there are three general ways: incidental civil action and the administrative case trial, with incidental civil action and the administrative case trial separately, together with the decision, as well as the incidental civil action and administrative cases, trial, judgment are respectively. The court in the trial of administrative incidental civil lawsuit, choose what kind of way is mainly based on the administrative litigation with incidental civil litigation relationship between case is clear, etc.. For example, the relationship between administrative litigation with incidental civil action complex, facts of a case and garbled, inner relation with the administrative cases are difficult to identify, if be hearing, will exceed the administrative litigation legal trial period, timely solve the influence of administrative cases, courts have the incidental civil action and administrative cases, trial, judgment are respectively methods.

 3 in the case of the trial, special attention should be paid to comply with administrative litigation and civil litigation their trial principle, should not be confused with each other, using. Such as civil lawsuit mediation principle, counterclaim principles cannot be applied to the principle of burden of proof of administrative litigation, administrative litigation and civil litigation. There are a lot of different provisions, cannot be invoked. √ soil a l cluster, two Dan Zhao - pregnancy seized Si wire L guards carry out, the owners convulsion:... ) a Poor star leek has Li Jiu Dou <l frog start "J ￡ ±

 

 

 

 

 

2, two kinds of treatment methods and classification standard

Administrative dispute and civil dispute cases related with the appearance of roughly the same, but the basic attribute is not the same. In some cases the form is the civil dispute cases, but in fact it is the administrative dispute; treatment of some cases of civil disputes and administrative disputes can be separated, and in some cases they can not be separated. We believe that the administrative disputes and civil disputes related case is quite complex, so in the design of processing uniformity can not program, but should be based on the factors of disputes, the dispute itself has the importance of cases and litigation efficiency, separately for different situations design process. The first is the way to deal with administrative litigation and civil litigation separately, but in the trial process and decision effectiveness has successively don't; second ways is the incidental litigation, administrative litigation with incidental civil action. So administrative litigation and civil litigation is individually or incidental, there should be a standard. We believe that in the judgment shall be conducted or incidental to the main consideration should be given to the following factors:

The first is the close degree of civil and administrative contact. Between administrative litigation and civil litigation is to take the incidental or tried separately, the key to see the administrative litigation and civil litigation are closely linked, if the two kinds of relations are very close to incidental trial, if not close can be tried separately. So, how to determine the close degree of administrative litigation and civil litigation relationship? We believe that the tightness is mainly reflected in the following two aspects: the handling of administrative dispute is to deal with civil disputes the premise or civil disputes as administrative disputes the premise; administrative dispute and civil dispute whether based on an action of the administrative subject or a fact (due to civil disputes and administrative disputes and civil disputes and administrative disputes between the two, because no dependence but when processing is indeed difficult to separate award).

 

The second is the complexity of the dispute itself. In the administrative dispute and civil dispute associated case there is a dispute as the main disputes, or for the civil dispute or for administrative disputes. It shall be on the two controversial respectively by the tribunal to try different if the dispute itself is relatively complex. If the dispute itself is very clear, the law applicable to understand, court to solve the main disputes can be solved with. When deciding whether a dispute is whether the "complex", mainly considering the legal relationship of the controversies involved is clear and straightforward, litigation is complex and other factors.

Once again to consider whether it is under the jurisdiction of a court. The jurisdiction of administrative litigation and civil litigation the principle is different, so there may be a dispute to a court jurisdiction and associated with the administrative dispute civil dispute is owned by the jurisdiction of the court of the B. We believe that, when the associated administrative disputes and civil disputes in accordance with the principle of jurisdiction shall be under the jurisdiction of the court is not same when not using the incidental litigation, civil disputes and administrative disputes can only be dealt with separately.

Finally, to respect the party's right to choose. For the parties to appeal to respect, the parties shall have the right to choose the related administrative and civil disputes by administrative litigation with incidental civil action or in the form of administrative dispute and civil dispute are in the form of litigation. Of course, the premise condition using this option is related to administrative dispute and civil dispute connected with administrative incidental civil lawsuit conditions. If both the administrative dispute and civil dispute does not possess the conditions attached, a party of course have no choice of administrative incidental civil lawsuit way.

The problem has 3, administrative litigation and civil litigation

When the administrative proceedings and civil case trial separately, we must first consider the question is should be administrative procedure or civil litigation. We believe that the administrative litigation and civil litigation both does not determine the "people first" or "ancestors." model, the relationship between the two should be the case. Specifically, has confirmed the relationship between administrative litigation and civil litigation should consider the following factors:

First, in which an action is the premise of. If the settlement of civil disputes depends on administrative disputes, administrative litigation should be as a prerequisite; if the civil litigation has been conducted, it shall be suspended civil litigation, administrative litigation judgment after, civil litigation to recover and have to administrative adjudication as a trial basis. Conversely, when the administrative litigation process must be resolved civil disputes, administrative proceedings shall be suspended, pending final judgment of civil, administrative proceedings and recovery.

Second, where a lawsuit begins. It is not to solve the principle of interdependence between the two administrative lawsuit and civil lawsuit, sure has the relationship between administrative litigation and civil litigation should be considered where a lawsuit begins. Generally speaking, first of all start proceedings shall be first.

Administrative litigation and civil litigation has two conditions:

⑴ must be treated separately from the situation. Administrative dispute and civil dispute must be treated separately from the case in civil procedure. In civil procedure, legitimacy when the civil dispute solution depends on a their own administrative behavior, administrative disputes as the premise to solve civil disputes, to resolve the dispute is the basis to solve civil disputes. The most common situation is that, in civil procedure, the specific administrative act as evidence that the parties in civil disputes, civil litigation parties on the legality of administrative acts of the objection, the administrative act is legal or not is difficult to confirm, or civil litigation parties and no objection to administrative behavior, but civil trial depends on the behavior, and the administrative act is legal illegible. The characteristics of this kind of case is: first of all, this kind of dispute cases by the civil dispute and controversy, between equal civil subjects, not caused by the administrative act; secondly, the legitimacy of administrative act in such cases in the status of the foundation, is the premise of civil disputes, if the legitimacy the problem is not solved a specific administrative act of the civil dispute cannot be resolved; finally, the parties in civil litigation and no direct request for revocation of administrative behavior, but a party to administrative acts as a support to the lawsuit evidence, the other side is often to the illegal administrative acts as a defense, the legitimacy problem so the settlement of civil disputes can not be the administrative action to avoid.

In dealing with such cases, we should distinguish two conditions: the first is in the process of civil action, call into question the legitimacy of administrative behavior of both parties to a premise of, and a party against the specific administrative acts of the administrative litigation filed a. In this case the civil trial court shall rule to suspend the civil procedure, the administrative dispute directly transferred to the administrative tribunal, after the administrative trial final judgment to restore civil procedure. Second is in the process of the civil litigation, the parties have the legality of concrete administrative behavior of the dispute, but did not bring an administrative lawsuit, or civil tribunal that civil trial relies on administrative act a legitimacy illegible. The Civil Tribunal shall notify the parties concerned of the first file an administrative lawsuit.

It can be treated separately from the situation. The case is handled separately must also take into account the parties the right to choose the relevant administrative dispute and civil dispute. If a case in accordance with the administrative incidental civil lawsuit conditions if the parties are unwilling to bring administrative incidental civil litigation, the civil dispute should be treated separately with the administrative dispute, the court can not authority directly to the civil and administrative disputes the merger trial.

4, administrative litigation with incidental civil action

Incidental litigation is refers to the people's court in the settlement of a dispute, the legal relationship of another nature of the facts of the case involved at the same time to solve the system, is a special form of joinder. The so-called administrative incidental civil procedure refers to the administrative proceedings, the people's court according to the party or the request of the interested party, and acceptance of the sued specific administrative behavior is closely related to civil disputes, civil disputes and administrative disputes with the litigation system.

 

(two) the administrative incidental civil lawsuit conditions

The administrative litigation is the premise to set up. Administrative litigation incidental civil action was a prerequisite set up. The parties in the administrative litigation incidental civil lawsuit, or in the process of incidental civil litigation in administrative litigation. If the administrative proceedings prosecution by the court ruled inadmissible in civil litigation, the attached have also been ruled inadmissible, in this case, the prosecution only an incidental civil action civil lawsuit alone. If the administrative prosecution dismissed by the court, civil litigation attached will be rejected by the court.

 

The existence of relevance. Relevance is the essential feature of the administrative incidental civil action. Association of mainly includes the following content: (1) with correlation between administrative dispute and civil dispute. Administrative litigation with incidental civil action is the people's court proceedings incidental activities closely related with administrative dispute solving civil disputes in the process of administrative proceedings, civil and administrative disputes must have close correlation. The association is refers to the administrative dispute and civil dispute and administrative behavior caused by the same administrative behaviors are not only to solve the original civil disputes, but the new civil disputes. It is mainly for two reasons: first, the specific administrative act is legal is a prerequisite for dealing with civil disputes, the specific administrative act is legal problems can not be solved, the relevant civil disputes unresolved. Second, because the civil disputes and administrative disputes, administrative organs for solving the existing civil dispute and administrative decisions, while the civil dispute parties of the administrative adjudication and administrative dispute not to obey. Processing of civil disputes and administrative disputes although there is no what is the premise of the question, but it is difficult to separate the two in the treatment. (2) the connection between the two kinds of litigation request. Administrative litigation with incidental civil action must have one (or several) administrative litigation request, that is the administrative litigation plaintiff believes that the specific administrative acts infringe upon their lawful rights and interests, asking the court to review the administrative behavior. Claims for administrative litigation types and different, as in the revocation proceedings litigation request for revocation told the specific administrative act, the affirmation litigation request confirmation of its legal relations or legal facts, administrative act is legal or not or whether effective. At the same time there must be civil proceedings, which requires the defendant to stop infringement of civil suit collateral, eliminate the nuisance. Must have the intrinsic relation between two different kinds of litigation request, this correlation is the different nature of the claim are from the same legal fact.

 

⑶. Incidental civil action shall be filed by the civil dispute. Incidental civil litigation filed shall strictly follow the "don't tell" principle, if the administrative proceedings in the litigation process did not request the civil litigation, the court can not actively according to the power to hear and decide the civil dispute. The civil dispute about whether to file an incidental civil action has the right to choose, if you do not select the incidental civil action, the court only for administrative disputes verdict. However, the people's court in administrative litigation cases, found to comply with the administrative litigation with incidental civil action of other conditions, shall inform the parties have the right to file an incidental civil action, have the right to file an incidental civil action for the party to give up litigation rights, should be allowed to.

The incidental civil lawsuit filed. Only in the first instance. Incidental civil action can put forward at the same time and administrative litigation, also can be in a trial before the end of the administrative litigation. If the parties put forward the incidental civil action shall be dealt with as a civil case. Already exists for administrative litigation incidental civil litigation request, the latest shall put forward before a court. Once in the second instance, the parties shall not file an incidental litigation, or according to the principles of litigation final instance, incidental civil part is actually an instance is final, this will cause the parties can not exercise the civil part of the right of appeal.

(three) the range of supplementary civil administration

1 to administrative adjudication may initiate litigation. Administrative adjudication is authorized by the legal administrative organs in accordance with the laws and regulations, an administrative behavior of civil disputes and administrative management in a field between the intermediary referee civil dispute is closely related to the. What is special about this administrative behavior is different from the general administrative behavior is the administrative adjudication must exist in civil disputes as the premise. If the administrative relative people of administrative decisions not there will be civil and administrative disputes coexist, namely between administrative adjudication organ and the administrative relative person of the administrative dispute and civil dispute administrative relative person original coexist. The relative people of the administration litigation request for revocation of administrative adjudication, its essence is to solve the civil dispute between the parties to the civil disputes.

2 the existence of tort victims of administrative punishment cases. The most common administrative action is the administrative punishment cases, but not for all the cases of administrative punishment shall be used in the administrative incidental civil litigation to resolve. We think should be limited to the existing tort victims of administrative punishment cases, namely from the infringement and damages. The fact that relates to this kind of case is taken to a citizen, legal person or other organization, the implementation of the administrative penalty is in violation of the relevant administrative laws and regulations, but also constitutes a tort. Then he should undertake the responsibility, but also bear the civil legal liability, this two kinds of legal liability of the same behavior based on the generated, so it has close contact. The most common practice is that some security punishment cases, environmental protection administrative punishment cases. The most appropriate solution is to court at the same time to resolve the dispute with the settlement of civil disputes. The existence of civil tort victims of administrative penalty cases generally include the following: (1) the person penalized prosecution of administrative punishment cases. In this case the person penalized often against an administrative punishment decision requesting the court to revoke or change it, at the same time, to make administrative punishment agency requirements be punished civil damage liability against; another kind of circumstance is the person being punished only for civil damages against the prosecution is required to reduce the. (2) the civil tort victims sued administrative punishment cases. Includes three kinds of situations: one is the victim of the person penalized punishment too light to the court administrative organs, and the person being punished or increase the amount of compensation given to her; the second is the administrative punishment shall be given authority to be punished by the amount of compensation for harm no verdict, the victim may sue to the court for the court processing; third is the amount of compensation for victims of administrative penalty confirmed not to court, requesting revocation of award of damage compensation, to judge or to change the amount of compensation the court. (3) the person being punished and the victims were sued, the court shall be prosecuted after the parties in accordance with their claim is different as the parties.

Some behaviors of 3 administrative implementation of administrative organs have been licensed, third party that violated their civil rights, in the administrative litigation process requests the court to deal with civil disputes. Not all cases of administrative license may apply to the administrative incidental civil lawsuit procedure. Applicable administrative incidental civil litigation situation only administrative licensing relative to a certain act, the third party that violated their civil rights, both to a dispute, and the opposite party of the administrative licensing by the behavior of administrative licensing for defense situation. If the third party to administrative litigation request the court to review the legality of administrative license may be incidental to ask the court to resolve civil disputes.

Procedure of incidental civil action, administrative 5

Party. Administrative administrative litigation with incidental part of parties in civil litigation position is clear, the plaintiff to citizens, legal persons and other organizations shall have the right to institute administrative proceedings, the defendant is undertaken the specific administrative act. The party in an incidental civil action shall be subject to civil disputes, administrative litigation plaintiff may be incidental civil litigation the plaintiff, also may be incidental civil lawsuits, but the administrative organ can not be used as the supplementary civil action part of a party, because of the administrative organs are not civil dispute parties.

Hear. First, the evidence problem. Administrative litigation part follows the administrative litigation law rules of evidence, evidence rules of civil procedure of the civil procedure law. Second, mediation. According to the "administrative procedure law", the administrative case (with the exception of administrative compensation cases) will not apply mediation. We believe that the administrative supplementary civil action in incidental civil mediation, because of incidental civil action in essence belongs to civil litigation, as one of the basic principles of civil litigation mediation principles of applying. Third, hearing problems. Administrative litigation with incidental civil action trial in general there are three ways: first, the incidental civil action and the administrative case trial together. With the causal relationship between civil litigation and administrative litigation, the facts of the case clearly concise without objection, the people's court shall be two kinds of lawsuit trial to solve the dispute quickly, timely. Secondly, the incidental civil action and the administrative case trial separately, together with the decision. This approach is often the first to the people's court administrative trial, and then on the basis of civil disputes, with the. Thirdly, the incidental civil action and administrative cases, trial, judgment are respectively. Incidental civil action, the complex relationship between fact and garbled, inner relation with the administrative cases are difficult to identify, if be hearing, will exceed the administrative litigation legal trial period, timely solve the impact of administrative cases. In addition, if the incidental civil litigation parties were unable to appear in court, should also consider the trial of administrative cases and then solving the civil disputes. Fourth, the trial period. According to the "administrative procedure law", the people's court shall make a decision after docketing the case the trial within 3 months, "Civil Procedure Law" stipulates that apply the ordinary procedure case for a period of 6 months. We think, the time limit of administrative incidental civil lawsuit should generally be for 3 months, but if the internal part of incidental civil lawsuit is complex or other reasons can not be in 3 month knot, can be concluded in the administrative case, by the collegial panel to hear the incidental civil part, but must be accepted within 3 months they play a supplementary civil action. Notable is, if the incidental civil lawsuit is filed in the process of administrative litigation, incidental civil action shall be accepted by the people's court shall calculate the incidental civil action to date, but not uniformly from administrative litigation filing date. Fifth, the trial organization. For the administrative incidental civil lawsuit, the trial organization should be unified into a collegial panel, summary procedure shall not apply. Sixth, the decision problem. In the first case and the second mode, the court of administrative litigation with incidental civil action part part shall make the decision, and make an administrative incidental civil litigation judgment. Fact judgment facts for the specific administrative act fact and civil disputes shall be stated; partial verdict reason shall be respectively the administrative litigation incidental civil action and judgment with reasons of and the applicable substantive law and the procedural law of each body part; the judgement of the administrative litigation should be part of and incidental civil apart from writing litigation. If due to objective reasons, administrative litigation with incidental civil action part of judgment and some not, can judgments were made, but the two judgments on civil or administrative part of their untreated should be accountable. If the civil part of mediation, it shall produce the administrative litigation judgment and incidental civil lawsuit mediation book.

The lawsuit time limit. Based on the existing legal provisions and the protection of civil rights, administrative incidental administrative litigation part in civil litigation with incidental civil action part of the application of limitation of action period of their. If the civil dispute parties file administrative litigation with incidental civil action has more than "the provisions of the administrative procedure law," the deadline for action, civil dispute is only a civil lawsuit alone, not an administrative incidental civil lawsuit.

Appeal. A judgment is made, the parties refuses to accept the administrative and civil part, can be filed an appeal, the court of second instance shall be tried. But the party only administrative part of the judgment or ruling alone civil appeal, the court of second instance shall be made by the administrative tribunal or civil court to accept? Then how should accept the trial? We believe that the administrative incidental administrative litigation in civil procedure for complaints, so no matter the parties appeal only to the administrative part of appeal or just part of the civil appeal, by the court of second instance shall accept the administrative tribunal. If the parties only to the administrative part or part of the civil appeal, explain it has given up on another part of the right to appeal, the court of first instance verdict, the court of second instance does not need to be a part of this decision to conduct the trial. But it should be noted that, whether the person is the whole or part of the appeal of the appeal, the court of second instance shall review the entire case, if found another part of the judgment is wrong, should be corrected by the trial supervision procedures, in order to make the case to get correct trial.

The execution. Administrative incidental civil litigation judgments, executed by the people's court according to the relevant provisions of the court "administrative procedure law" and "Civil Procedure Law" implementation. The administrative organ shall have the right to enforce, and can also perform. If the judgment and civil administrative part of the decision in effect at the same time, the two part of the judgment shall be performed at the same time. If the parties to the administrative incidental civil judgment executive part of the appeal, no appeal to the civil part of the civil part, not to advance execution, but should be in the second instance court made a final ruling on the administrative part of the post, and then decide whether to implement, but the parties appeal not only to administrative section, the civil part of the appeal, the people's court may the administrative part of prior execution, and not wait until the trial court made a final judgment on the part of the civil execution after delivery. The people's court for administrative and civil part making judgment shall separately, namely the execution of the administrative part of the decision after the implementation of the incidental civil action of the decision.