Abstract of the thesis:Administrative litigation and civil litigation are two different kinds of action, are not the same concept, adjusting object, processing methods, scope and other aspects, the static, it is difficult to cross the two question. But in the judicial practice, common administrative, administrative litigation, administrative and civil litigation not only increased two times the cost of litigation, but also easy to make the parties in litigation, administrative court and civil court hearing the same party demands respectively, and cause the waste of judicial resources. With the continuous deepening of the judicial practice and the complexity of social relations, civil and administrative disputes cross together disputes is increasing, the academic and practical circles also have done a lot of research and exploration, the administrative litigation with incidental civil action to solve the cross case for civil litigation mode "Darling", such as Professor Ma Huaide Xue Gangling, Jiang Wei, etc. all the incidental civil procedure justice in solving civil and administrative dispute over[1]On 2000, the Supreme People's court "explain" sixty-first, and refers to the our country has already established the criminal supplementary civil action (solved problems in civil criminal litigation system), so as to construct the Chinese administrative litigation with incidental civil action. At present, with the view of the majority of people, there are a few scholars hold against the administrative litigation with incidental civil action point of view, think to establish administrative incidental civil lawsuit is on 2000 the court "interpretation" of article sixty-first distortion, administrative litigation with incidental civil action can not follow the pattern of criminal incidental civil action, the two have very different. In this paper, through administrative differences between incidental civil action and criminal incidental civil action, from the administrative litigation with incidental civil action is lack of theoretical basis, through the research of the administrative incidental civil lawsuit possibility cause does not exist in the administrative litigation and administrative adjudication, so as to establish China can not refer to the criminal supplementary civil action to establish administrative litigation with incidental civil action model to support the author's point of view. (the full text of a total of 7700 words)

In 2000 the Supreme People's court "interpretation" of the provisions of article sixty-first of the issued, caused widespread concern in the theory of the law to administrative supplementary civil action, supporters to find a legal basis of administrative incidental civil lawsuit from, and according to our existing criminal incidental civil action, think through the establishment of the administrative incidental civil system in order to solve the cross the problem for the people. But the opposition has also put forward the theory of administrative incidental civil lawsuit questioning the establishment, thought to be more and more challenges in the legal system, the criminal supplementary civil action[2]And sixty-first, the provisions did not clearly pointed out that through the establishment of administrative litigation with incidental civil action to solve the cross question people, many scholars only according to the Supreme Court "explain" the provisions of article sixty-first and on the basis of criminal incidental civil action and most probably it did not actually happen to derive the administrative litigation with incidental civil action, this is a distortion of legal interpretation.

The author believes that, in the context of social transition, the administrative litigation with incidental civil action the "absorption" relation model is facing lots of difficulties. Administrative litigation with incidental civil action and can not fully protect the legitimate rights and interests of the parties. For example: due to the incidental civil cases, judges in the trial of administrative cases of evidence and facts not in incidental civil action in court re examination, prevent incidental civil action litigant full court investigation and debate, legal rights have been deprived; incidental civil action can not realize the saving of judicial resources, enhances the lawsuit efficiency, sometimes resulting in complicated programs, lead to increase in the cost of justice; in incidental civil action, lawsuit participates in a person's role confusion, often have a dual identity, because the trial procedure, survey, certification rules on different, very easily lead to lack of clarity, focus on the fuzzy situation, increase the difficulty of the trial. So it is necessary for the administrative incidental civil lawsuit as a rational thinking.

A distinction, administrative incidental civil action and the criminal supplementary civil action to the lack of theoretical basis of administrative litigation with incidental civil action

(a) the legal basis of incidental litigation

Incidental litigation is refers to the court in resolving a dispute, will be incorporated into the same behavior caused by two kinds of disputes of different nature to form with a lawsuit proceedings be solved by the same trial organization, is a special form of litigation merger. Joinder in the general sense refers to the court for the same species and litigation cases exist independently at the same time trial litigation system, the merger trial is mainly in order to save time, increase efficiency, but also to avoid inconsistent court to solve the same kinds of cases for trial, sentenced persons not with the resulting decision. Incidental civil litigation as a special form of joinder of the court, is the two different kinds of disputes in the same proceedings settlement system. Therefore, the incidental civil action embodied as follows:

1, efficiency. Through actionable merger trial courts, can improve the efficiency, and quickly to solve the dispute; to simplify the procedure, save manpower, material resources and time;

2, interest. The incidental litigation, to solve the two kinds of disputes of different nature are more favorable, which is to solve a dispute to solve another controversial, or solve is a controversial certainly solved after a dispute. This can reduce the litigation burden of the parties concerned, and to avoid conflicting referee.

Incidental litigation significance is to improve the efficiency of litigation, to avoid inconsistencies in court to solve the same kinds of cases for trial personnel due to different verdict. In theory, incidental litigation system can save litigation costs, improving the efficiency of lawsuit, but in practice it can ensure the unity of justice and efficiency? The answer is not entirely sure.

Although the incidental litigation has the advantages, but the administrative incidental civil lawsuit can not be attached to suit the advantage of civil litigation and administrative litigation, because there are great differences in the litigation principle, objective and procedures, although the administrative litigation comes from the civil litigation, but if the two dispute soft together to achieve "harmony", which quickly settle disputes, may lead to conflict between the two. Measure these in some cases do exist contradictory factors, rules for exercising effect of court cautious attitude, should not be too much emphasis on the desire to improve efficiency and make other interests take second place.[3]

(two) the difference between administrative incidental civil litigation and criminal incidental civil action

Because our country exists the criminal supplementary civil action, is used to solve the crime of civil compensation to the victim, to protect the victims of criminal cases and solutions. For row and civil cases is more, many scholars on the basis of the criminal supplementary civil action proposed the establishment of China's administrative litigation with incidental civil action can solve problems for people by cross, a program to solve the two disputes, not only saving the judicial cost but also reduce the judicial lawsuit burden, shoot two hawks with one arrow. But the surface similarity can not cover up the essential difference between inner.

Administrative litigation with incidental civil action and the criminal supplementary civil action has a large difference in the subject, the limitation of action, involving the interests of justice, etc, are as follows:

1, a huge difference between the main procedure. The criminal supplementary civil action in criminal and civil, is the first, is the victim has suffered losses caused by the defendant's criminal act, there is a causal link between the criminal and the victim's loss, so if the defendant's conduct was characterized as crimes or illegal, the victim suffers the loss, the defendant should bear civil liability. The defendant in a civil litigation must be defendants in criminal lawsuit, civil lawsuit can not be divorced from the criminal litigation and administrative litigation with incidental civil action exists; but it is not so, there is no causal relationship between the specific administrative act and civil disputes the defendant, there is no specific administrative act, the civil disputes still exist, the specific administrative act of civil litigation is not attached to the administrative, civil disputes and administrative disputes can be completely separated, civil litigation can precede the specific administrative behaviors. Moreover, defendant in administrative litigation is not a party to a civil action, civil litigants is personal, and the defendant in administrative litigation for the public powers.

2, administrative litigation with incidental civil action and the criminal supplementary civil action in the statute of limitations on different. Aging of supplementary civil action in criminal proceedings are not completely in civil law and civil procedure law. Criminal supplementary civil action in criminal litigation, first, as long as the crime is investigated, incidental civil action filed has the right of action, will not exceed the limitation of action, because only the criminal litigation initiated, will likely incidental civil litigation; administrative incidental civil litigation is not the case, if the specific administrative act the executive decision of civil disputes for the content, for handling administrative organ before the request protection effect subject to the provisions of the civil law, subject to administrative prescription treatment; if a specific administrative act and unresolved civil disputes, civil litigation are independent of administrative litigation, to be fully subject to litigation.[4]

3, administrative litigation with incidental civil action and the criminal supplementary civil action triggered by the parties to litigation legal relationship of different interests. In the criminal supplementary civil litigation legal relationship, procuratorate and victims in the accused responsibility and become the interests of the complex, although the procuratorate as a prosecutor on behalf of the state into the criminal responsibility of the accused, but the victim not only to pursue the criminal responsibility of the accused, also asked the defendant to bear civil liability; legal requirements in strict accordance with the law, procuratorate handling justice, give the power to protect the defendant more, in order to achieve the balance of power; and in the administrative incidental civil litigation legal relationship, theoretically no interest community, but it has the benefit community in practice, in addition to the parties litigation cases on behalf of opposition, defendant in administrative litigation is the administrative organ, the parties in the administrative lawsuit and civil litigation cases one party or both parties opposition, any United will harm others benefit, but the law does not stipulate the administrative litigation with incidental civil action, there will be no regulations to prevent[5].

4, administrative litigation with incidental civil action and the criminal supplementary civil action in the judicial personnel skill requirements of different. The criminal supplementary civil action has been questioned by the scholars, but from the perspective of relief to victims, but has the necessity of existence. Criminal justice personnel proficient in the criminal law, the civil part, as long as the basic civil right infringement. This basically can be competent the civil damage compensation,, don't need to know all the civil law; but the administrative incidental civil lawsuit, civil law is the law, the coverage is very broad, the administrative law is the same, the same criminal incidental civil examination scope, judges if the administrative litigation with incidental civil action to solve the cross case for the people, civil and administrative law have to master, will inevitably lead to the increased workload, inconsistent with the increasing refinement of social division of labor, also do not accord with the grass courts at the present stage of China's judicial status. And it is applicable to administrative cases of civil disputes and the law is not the same, such as the trial of administrative cases can refer to the regulations, and the trial of civil dispute is only the narrow sense of the law.

(three) the lack of theoretical basis of administrative litigation with incidental civil action

Good people interwoven cases growing conditions, request for additional administrative litigation with incidental civil action legislation has been getting higher and higher, the judicial interpretation and no reference to practice the criminal supplementary civil action law of criminal procedure, but a compromise. The Supreme People's court "explain" the sixty-first stipulation: "the equality between the main civil dispute the verdict of unlawful civil dispute, request the people's court to solve the relevant civil disputes, the people's court may also hear". According to the regulations, the court has and the handling of administrative dispute and civil dispute shall meet the following conditions:

1, the specific administrative act is the defendant made on equality between the main civil dispute administrative verdict lawsuit plaintiff's subject, if not the administrative decisions, even relates to civil disputes, the court also can't be heard.

2, only in the administrative decision is illegal, the court can merge the acceptance.

3, the civil dispute the two parties did not request the court to be heard, the court has no power to be heard. In fact, in conjunction with the trial, the civil dispute is already existed before the administrative participation right, so the administrative decisions and be hearing the fundamental purpose, is to seek the ultimate solution to civil disputes.

Not to mention the lack of laws and regulations, the imperfections are obviously. First, the legal provisions are too simple, easy to understand differences, whether administrative litigation with incidental civil action is equivalent to "be accepting"; second, the narrow scope of application, only including composite administrative cases, administrative adjudication triggered, far from strong complex administrative cases dealing with various types; thirdly, the specific program is not specified if not specified, the civil dispute should be put together, how to carry out the trial of the distribution of burden of proof in what time.

To sum up, the administrative incidental civil lawsuit system of the purpose and nature of civil litigation and administrative litigation against, the aim of civil litigation and administrative litigation purpose can not be fully realized; nature is also contrary to the two kinds of litigation to resolve various disputes. From the civil litigation "safeguard and realize substantive rights and interests of the parties and procedural interests, safeguard the legitimate rights and interests of the relative people of administrative litigation", "the supervision of administrative behavior" purposes, mining incidental litigation can not realize the two greatest litigations purpose. Therefore, the lack of legal basis of administrative litigation with incidental civil action.

Two, administrative litigation with incidental civil action problems -- not the trial efficiency

Some scholars put forward the legal value of administrative incidental civil lawsuit is to realize the efficiency of the trial, this civil cases by a program to process, to improve the conclusion of the case rate. In theory, inference is feasible, but the fact is not like that. We know, in criminal incidental civil action, incidental civil action must be in the criminal procedure after the investigation to examine the prosecution, criminal responsibility and obligation and incidental civil litigation the plaintiff's rights is consistent, if the public prosecutor accused Li, the defendant's acts constitute a crime or not. Crime but illegal facts established, the fact is the incidental civil action has been clear, the fact of infringement exists, therefore, plaintiffs of the supplementary civil action that is exempt from the burden of proof for the fact of infringement obligation, the people's court also do not need to examine whether there is infringement judgement, but direct tort damage, and on the basis of incidental litigation plaintiff's burden of proof to make a decision, which reflects the efficiency of criminal incidental civil action to resolve civil compensation. But in the administrative lawsuit is obviously not the existence necessity and efficiency of such a theory, not only does not exist on the administrative litigation with incidental civil action may be, but if we must be certain behaviors are classified into the incidental litigation, the administrative litigation for affiliate review unnecessary, form and result in administrative litigation is not. The necessary system, is not conducive to play the role of administrative litigation.

(a) of China's administrative review is limited judicial review

In administrative proceedings, the people's court only review the specific administrative act is a legitimate form, instead of the administrative organ that has made the specific administrative act, the administrative organ of the people's court in the review of specific administrative act, only on the legitimacy of administrative behavior judgment, for administrative behavior should be how to not award. If the supplementary civil action in administrative proceedings, to solve administrative arbitration behavior caused by civil disputes, is established with the purpose of administrative proceedings is inconsistent, the administrative procedure into is not clear.

(two) the particularity of civil procedure in cases should fully reflect the autonomy of the parties

The exercise of the administrative litigation and relates to the national administrative power is completely different, the essence of litigation and litigation characteristics are different, the incidental civil action in administrative proceedings, can not effectively solve the two disputes of different nature.

(three) the improvement of the legal system of the administrative incidental civil litigation theory lose existing environment

The problem faced by the administration in the practice of the exercise of Administrative Solutions of civil disputes become more cautious, for example, have to solve civil disputes corresponding administrative authorities, but no corresponding measures to guarantee, leading to the investigation evidence collection difficulty; at the same time, the administrative organs become the defendant and the risk of losing increase, led the government to cut and never the legal provisions; agency decisions on civil dispute, the parties appeal, the court may direct, try to take the mediation or the parties to the court makes direct persuasion administrative adjudicate civil disputes, causes the administrative ruling as a mere formality; finally, the scope of administrative adjudication of civil dispute gradually narrowed, the Supreme People's court "interpretation" the administrative mediation, administrative arbitration ruled out the scope of accepting cases in administrative litigation is a demonstration, the administrative litigation with incidental civil action theory lost existing environment.[6]

To sum up, in administrative proceedings, there is no legal basis, the theoretical basis and possibility of incidental litigation, the improvement of the legal system to make the theory to die. If the behavior of some review to administrative litigation with incidental civil action, is because the nature of the differences between the two kinds of litigation in civil and administrative proceedings are not efficiency, or other adverse effects, at the same time as the incidental litigation itself, combining foreign experience is not a necessity of the litigation system, plus on the status quo of China's administrative proceedings, shall not incidental civil action in administrative proceedings. The defects of administrative incidental civil lawsuit in theory, judicial practice of administrative incidental civil lawsuit in attempt to encounter procedural difficulties, enable people to doubt the necessity of its existence.[7]The development of legislation to make people believe that the administrative incidental civil action without necessary existence, abandon the administrative litigation with incidental civil action is to represent the general trend, the concept of procedure justice more strong, incidental civil lawsuit is not reasonable, the theory of administrative incidental civil action could be abolished.

Three, in the administrative litigation and administrative ruling does not exist the possibility to cause administrative incidental civil action

(a) the possibility of incidental civil action does not exist in administrative litigation

Legal relations will not be the same act 1, administrative organs to produce two or more than two different properties. Administrative dispute in administrative litigation in administrative procedure, the administrative organ is illegal infringes the lawful rights and interests of each phase, in administrative action, there is no possibility to infringement of two kinds of legal relationship with a behavior.[8]

Administrative action is the administrative main body, the exercise of national public power behavior. The administrative main body exercise of public power, has the characteristics of mandatory, unilateral. The legal relationship between the administrative subject and the form of the administrative law relation, regulated by the administrative law. Legal consequence of administrative act undertaken by the administrative subject. If the administrative act as illegal, violates the lawful rights and interests of each phase, the violation of administrative legal relationship of legal protection, the legal consequences: on the one hand is the opposite party may bring an administrative lawsuit, asked to confirm the illegal administrative acts; on the other hand is for the administrative behavior to the relative party caused by the property rights, personal rights loss, can claim the administrative compensation, requests the executive compensation. Therefore, in the administrative procedure, which does not generate two different legal relationship, there is no basis of incidental litigation, also does not have the nature of two different legal responsibility.

2, the administrative organ may not at the same time is the defendant in administrative litigation, but also with the civil lawsuits. One is if the civil behavior of the administrative organ and other civil dispute, it shall bear civil liability, civil litigation legal relationship, not legal relation of administrative litigation, nor may exist in administrative litigation with incidental civil litigation; the two is that if administrative organs in administrative action while the infringement of the personal right or property right, the administrative relative party may file the administrative litigation and administrative compensation litigation, nor the existence of incidental litigation. Therefore, in administrative proceedings, there is no basis of incidental litigation, administrative litigation with incidental civil action is not possible.[9]

(two) the possibility of incidental civil action does not exist in administrative adjudication

Administrative adjudication is administrative solutions of civil disputes between equal entities behavior. Administrative adjudication in the civil dispute should not be resolved in the administrative proceedings, the reasons are as follows:

1, administrative adjudication is essentially to solve civil disputes, civil disputes are resolved not to have to solve in the administrative procedure, which can be solved by the civil procedure;

2, in the administrative proceedings in the trial of civil disputes, aggravating the burden of the court. The people's court set up the administrative tribunal of specialized in handling administrative cases, administrative cases are complex, if the people's court administrative tribunal to resolve civil disputes, is bound to increase the burden of the court, the efficiency is not conducive to the administrative trial;

3, administrative litigation trial period is two months, while the civil trial period is six months, if the solution civil dispute in administrative trial at the same time, solve not only delay the administrative dispute, but also deprived of civil disputes legal proceedings;

4, if the use of the administrative incidental civil litigation pattern, the other party will become the civil litigation the plaintiff, the plaintiff of administrative lawsuit and civil disputes, which does not comply with the pattern characteristics of incidental litigation. If the administrative litigation plaintiff be incidental civil litigation the plaintiff, because the burden of proof in different trial due to difficulties.

Administrative hearing is to review the legality of specific administrative act, the administrative organ to collect review is rooted in the administrative procedure evidence. Review of the standard is: the administrative body is the statutory authority, the administrative main body behavior whether there is sufficient evidence, administrative act in compliance with legal procedures, administrative act is breach of privilege, the administrative subject is correctly applies the law etc.. If the administrative organ can not provide evidence of administrative action evidence, its administrative behavior will be considered illegal by the people's court to revoke. Therefore, the results of the trial in administrative litigation and civil dispute hearing inevitable connection does not exist. Because the administrative ruling even entity result is correct, also due to program errors or insufficient evidence was revoked. Not because the administrative ruling is revoked that civil disputes can be resolved. At the same time, the court in the review of administrative adjudication, the other party will not prosecute the column for third people, is in order to facilitate the third people to provide sufficient evidence to prove their claims, but also conducive to the people's court verdict evidence for administrative review. But a review of the evidence is in order to solve the people's courts legitimacy of specific administrative acts, rather than to the settlement of civil disputes.[10]

To review the legality of administrative adjudication of the people's court, civil disputes will appear as follows: first, if through the review, the people's court administrative ruling in accordance with the conditions and requirements, legal evidence, the people's court shall be maintained, in keeping with the administrative adjudication, also maintained the administrative organ to solve civil disputes, civil disputes of course, be solved. Second, if the people's court decisions of administrative review, found insufficient evidence, or other illegal plot, it shall revoke the administrative adjudication. After the cancellation of administrative adjudication, as does not exist from the beginning, the civil dispute back to the disputed state, have the following possibilities: the civil dispute litigant reconciliation to resolve civil disputes, civil disputes; both parties may apply to the people's court to resolve disputes; if the law, regulations of the civil disputes by administrative organs must be the award, shall be made by the administrative agencies to collect evidence, and make a ruling. Therefore, in the administrative litigation of administrative adjudication, there is no deal with civil disputes, civil disputes can be solved by a variety of ways, but if the incidental civil action, will have adverse consequences, conflict is chaos and consequences of the burden of proof.

The burden of proof of the basic principles of civil litigation is "who advocates, who proof", therefore, incidental civil lawsuit plaintiffs have the burden of proof. In the supplementary civil proceedings, if the administrative proceedings plaintiff become civil litigation the plaintiff, the plaintiff of administrative lawsuit, it does not bear the burden of proof, if the defendant cannot proof, the defendant should bear the legal consequences of losing. But as the civil litigation the plaintiff, the duties and responsibilities of burden of proof, proof of their civil rights and civil claims. Therefore, if the administrative litigation with incidental civil action, appears the following results: the plaintiff has also become a civil litigation the plaintiff in administrative litigation. At the same time, the plaintiff should bear the burden of proof in lawsuit. Therefore, the people's court in the review of administrative burden at the same time, also want to examine the incidental civil action the plaintiff and the defendant (plaintiff) evidence. This review will lead to conflict of administrative litigation with incidental civil action consequences. The people's court review of administrative litigation with incidental civil action, through the review of two kinds of litigation evidence, the following results: one is the arbitration and civil litigation in administrative litigation ruling identity, administrative agency adjudications have illegal conditions including no statutory authority, erroneous application of the law, breach of privilege, the evidence is not sufficient, the people's court according to the provisions administrative litigation law of the revocation of administrative organs and the people's court verdict, the incidental civil action of burden of proof of both parties, that identify the fact and the administrative organ fails to fit the facts, so for the plaintiff of administrative litigation judgment. In this case, the administrative proceedings plaintiff has become the prevailing party in administrative litigation, has become the prevailing party in an incidental civil action, which is also in line with the plaintiff's prosecution of purpose; one is the inconsistent results, after the review by the people's court, the people's court that illegal administrative acts, it shall be revoked, but according to the civil litigation of burden of proof, the processing results of an administrative decision is correct, therefore, the plaintiff in administrative litigation in civil suit. The results for the administrative litigation plaintiff shows at least, the administrative litigation is no efficiency.

Four, the conclusion

The above facts and statements suggesting that in the administrative behavior, should not have the administrative incidental civil lawsuit. Processing of civil disputes and administrative disputes over righteousness, not considering the benefit of litigation, disputes

Settlement mechanism should be carried out in visible ways. Language has "no right no relief", but not the appropriate dispute settlement mechanism is no relief. Crossover mechanism to deal with civil and administrative dispute is very significant to the people. Is not only related to fairness, justice, efficiency, but also relates to the realization of judicial authority and civil rights, therefore, on the basis of the judicial system to solve the cross case design for the people, should not use administrative incidental civil litigation mode. No clear legal provisions, judicial and no specific operational processes. The author thinks, solve the increasingly becoming cross cases for the people, shall keep always stand in the perspective of convenience, both judicial efficiency, resource conservation principle, focus on the use of appropriate for guidance and clarification necessary, pay attention to communication and contact with the establishment of administrative court and civil court. This can not only save the trial efficiency, parties to the court to reduce unnecessary misunderstanding, can also promote the case to be resolved.