[introduction] case

Plaintiff: gongmou. Defendant: Provincial Department of justice.

Gong onJune 1, 1987 was awarded the qualification as a lawyer in a judicial department, in 1988 June to 1991 May in Rongxian province was the legal advisory office hired three lawyers. In 1991 and 1992 Provincial Department of justice are full-time lawyers on behalf of a lawyer to Gong work license registration. Since September 13, 1990, Gongmou was translated to the county government, in August 9, 1993 was appointed deputy director of the county government office. In 1993, Gongmou according to the requirement, the materials to the Rongxian Office of legal counsel, to apply for registration. July 1st of the same year, Gong from the June 22nd "Zigong daily" saw the Municipal Judicial Bureau on Lawyers registration announcement, did not find his name registered lawyers list, hence has Xiang Rong County Bureau of justice, the Zigong Judicial Bureau and Provincial Justice Department inquiry, but did not get the exact answer. In September 20, 1993, in this case, Gongmou city Qingyang District People's court in the administrative proceedings, request the court to sentence a judicial department to be the exact answer to unregistered lawyer license behavior, and the lawyer license registration, renewal.

[question]

Legal issues relating to the case involved refuses to execute the administrative license statutory duties.

[legal]

"Administrative procedure law of the people's Republic of China" article eleventh (four), article fourteenth (three), the first paragraph of article twenty-third, article fifty-fourth (three), article sixty-first (three) items.

[results] the case analysis and treatment

In the first instance, the Gongmou requested the court a judicial office for registration and replacement of the lawyer's license litigation request, the Provincial Department of justice argued that: the first, for each year of lawyer license registration, belongs to the internal management behavior of the judicial administrative organs, according to the relevant provisions of the Ministry of justice, the act shall not apply for administrative reconsideration and administrative litigation, therefore, it does not belong to the scope of the court; second, the plaintiff Gongmou has been transferred to the lawyer institution outside of government departments, according to the relevant provisions of the Ministry of justice, cannot be engaged in lawyer work, therefore has not been registered. Trial court that: according to the Ministry of justice of the judicial administrative organs "reconsideration and responding work rules (Trial)" article fourth, article twelfth and the Department of Justice (justice function1990) No. 384 "on the disbarment, provisions approved" recover lawyer license second, Provincial Department of justice to make registration shall not be decided is the internal management of the judiciary, is decided not to file the administrative reconsideration and the administrative litigation, the court ruled in December 7, 1993 that rejected the plaintiff Gongmou prosecution.

After the verdict, Gongmou dissatisfied, to appeal to the intermediate people's Court of first instance ruled, requesting revocation, accepted. City Intermediate People's court that: according to the "administrative litigation law of the people's Republic of China" the first paragraph of article eleventh (four) and the provisions of article twelfth, mentioned to refuse to register a lawyer license action belongs to the people, the scope of the court, the trial court in accordance with the provisions of Department of Gong of the indictment was dismissed not right, therefore, City Intermediate People's courtIn February 21, 1994 ruled: revocation of Qingyang District People's Court of administrative decision; the cause of the intermediate people's court case. Then, the Municipal Intermediate People's court formed a collegial panel, a public hearing of the case. After the trial, the Municipal Intermediate People's court thinks: Department of justice on lawyer license annual registration is the judicial administrative organ to exercise the administrative powers of concrete administrative behavior, not the internal administrative behavior; Gong may initiate the management action belongs to the "people's Republic of China Administrative Procedure Law" article eleventh (four the administrative litigation law) the scope of accepting cases; a judicial department responsible for the annual inspection on the registration of lawyer's license and reply obligations, and the judicial department of gong an application has not been answered belongs to the non performance of statutory duty. Therefore, the Municipal Intermediate People's court in accordance with the "administrative procedure law of the people's Republic of China" article fifty-fourth (three) Xiang Zhi provisions in the December 20, 1994 decision: to make a clear answer to the plaintiff for Gong proposed full-time lawyer license registration within one month of the defendant a judicial department takes legal effect of self judgment, order.

This is because the citizens refuse to accept the judicial administrative organ refuses to register the lawyer license behavior and litigation. There are two main legal issues involved in this case:

First, whether the case to the people the scope of the court. On this issue, there are different views in the case, the defendant in a hall of justice and the court of first instance that the case does not belong to the people the scope of the court, and the plaintiff Gongmou and the court of second instance the case belongs to the people's court case range. We think that the second views are correct, because, "the administrative procedure law of the people's Republic of China" article eleventh (four) clearly states, citizens, legal persons and other organizations that meet the statutory requirements to "apply for the administrative organ to issue a permit or license, the administrative organ refuses to discuss the specific administrative action shall be issued or failure to respond to people" belongs to the scope of the court. A lawyer's license is a permit or license, and registration behavior also has the same effect, and so on "issued, the administrative procedure law of the people's Republic of China", the people's court clearly belongs to the scope of accepting cases. The court of first instance to the relevant provisions of the Ministry of justice to negate the force of law is clearly untenable.

Second, the existence of a judicial department does not perform their statutory duties behavior. To determine whether there is the premise of administrative organs do not perform their statutory duties behavior is to see whether the agency has a legal obligation to act, in accordance with the relevant provisions of the judicial administrative department of our country, is a lawyer license registration and management. The lawyer license refers to a license, the labor rights and property rights and thus, from the protection of the rights of the parties and the supervision and administration according to law, judicial and administrative departments have responded to the obligations. In this case, the defendant in a hall of JusticeIn 1993 the lawyer license registration management, apply for registration to the plaintiff Gongmou proposed law license, this should be made to be registered, shall not be registered or suspend the registration decision as soon as possible, however, for a judicial department in reply to the application for duty Gong, and also has a capacity to reply, but refused to make any decisions, nor to Gongmou reasons, which obviously do not perform their statutory duties. Therefore, City Intermediate People's court decision defendant a judicial office for registration to the plaintiff Gongmou proposed law license within a certain period of time to make clear answer is correct.

[PROBLEMS]

Management behavior in this case is a focus of the judicial administration department of law is the internal administrative behavior, or external administrative behavior. To distinguish between these two categories, is of great significance in administrative proceedings, because according to the provisions of the administrative procedure law, internal administrative acts often does not belong to the people's Court of the case, not get judicial remedy. We think that the internal administrative behavior is a kind of management on behalf of the state administrative subject belonging to their own organization, personnel and property; and the external administrative behavior is a kind of management of social administrative law administrative subject. The former is embodied in the state management of their own, which is embodied in the State Administration to society. In this case, the registration of the judicial administrative organ of the lawyer's license apparently is embodied in the State Administration to society, and the law is an independent occupation, not the judicial administrative organs of civil servants, therefore, a judicial office that the registration of lawyer license belongs to the internal management behavior theory obviously untenable foot.

[reference]