First chapterThe process of administrative litigation

   Although Chinese ancient had well-developed system of administrative supervision, administrative litigation system is mainly in the

The western system results from modern tide. China modern transplantation system of western administrative litigation, and the present

The progress of modernization, has gone through a tortuous history. 1989 promulgated the "administrative procedure law" standard

Will the system fully established in China mainland, and its implementation is still facing many problems.

                    The first section of foreign administrative litigation experience

  In the course of development of this China administrative proceedings before, may wish to briefly review the experience of the western countries. This experience was as "exotic", is now into the legal theory of human Chinese, become Chinese intellectual origins of the legal system.

   Generally speaking, the western countries the system of administrative litigation with civil law and common law two traditional, respectively, in France and the UK as the beginning. The following paper administrative litigation system in the course of establishing the two countries and later development.

   Establish a, French administrative litigation system

   France is the world within the scope of "administrative law country", set up the administrative court very early. But the French administrative court initially is a special kind of decentralization theory -- "administrative not subject to judicial intervention" -- results of O

  "The French Revolution" in the early, on behalf of the old forces still holding court judge. They use their power to intervene and block by the revolutionary government measures. While France generally accept Montesquieu's theory of separation of powers, that the executive power and the judicial power shall perform their duties, each one minds his own business. So, in 1790 8 month, the French constitution will be through legal provisions, "the judicial power and administrative powers"; the judge shall not interfere in the activities of administrative organs in any way, nor because of administrative officials officiate the subpoena, and offenders, to punish malfeasance. Since then, the court can not intervene in administrative activities.

   But the exercise of power there will always be people who hurt, the victim must have a reason. In 1796, a legal national assembly rules, request the cancellation of administrative act cases should appeal to the chief executive. However, the chief executive had to attend to. In 1799, just as the chief executive officer authorized by Napoleon called a "house counselor" ( Conseil d'Etat) expert team, help him to deal with all kinds of complaints, but also to provide advice to the government's draft laws and orders, rules and regulations. Although the handling of complaints should be decided by the chief executive of the name to make, but the Chief Executive (and later the emperor or King) good, the decision on the settlement house counselor drafted almost never rejected. Thus, the formation of the development process of the administrative court in an important inertial

An example. In 1870, the French parliament passed a law authorizing staff college, to review the complaint to the name "the French people" directly make a decision. This gives the right to decide its own. Soon, simply put the name was changed into "administrative court".

   Since then, the administrative court functions and mechanism of expanding. A 1889 law provisions, if a party refuses to accept the administrative behavior, without first by Ministerial Decision, can be sued directly to the administrative court. With the increase of cases, in 1953 the establishment of the administrative court, the general administrative case to the local administrative court, the Supreme Administrative Court in principle only appellate cases. Then, the Supreme Administrative Court also can't come. So, in 1987, according to the big area set up 5 appeal court. In addition to the specific types of cases, the Supreme Administrative Court -- then become be worthy of the name of the Supreme Administrative Court - in principle only as the court of final appeal.

    Until today, part of the French administrative court in law or administrative organ, the administrative leadership of the head. French Prime Minister nominally president of the Supreme Administrative Court, the administrative judge is administrative officials not to judge, they have extensive exchanges and administrative departments in the personnel and business. But in fact, vice president of the supreme administrative court presided over by the administration work of the court, the prime minister never ask. In the appointment, appointment of administrative law judges have a fixed program, even the prime minister can not be free to appoint or replace. In business, the administrative court independence is very strong, not an administrative officer to the backseat driver. In this way, the administrative court as an independent body in charge of administrative disputes in the courts to solve.  

In the long-term work in the administrative court itself, formed a good program, established a number of important rules. The administrative court procedure more and more judicial. The handling of the case also pay attention to justice, not blindly take administrative organs. It has created many important legal principles and rules for the public. The administrative courts deal with administrative dispute very respect precedents, which formed the judicial precedent system in the field of administrative law. The tradition of continental law for the French speaking, this is a unique landscape. Someone commented that, if you're at the stroke of a pen, the French Civil Code cancel, France has no civil law; if the criminal code to France cancelled, France has no criminal law; but if the administrative law of France cancelled, administrative law in France still exists ---- that the administrative court rules. Indeed, in the past two centuries, the French Dynasty, frequent change of constitution is made for many times, the administrative court became a French social navigation in the concussion sustained in the "ballast to a certain extent".

The successful experience of the French administrative court for the European countries have to follow. Germany established a separate administrative court ordinary outside a court in the middle of the nineteenth Century, even the name is independent from the administrative organ. In Japan during the Meiji Restoration, also follow law, Germany, founded the Administrative Court ("World War II" cancel). In today China Taiwan and Macao area, also can see the administrative court mode.

   Established in two, the British judicial review system

   In England, the "a court, a court of law, the privilege of fear, the concept of the rule of law. This concept is initially hostile to the administrative court and administrative law. However, in the public authority and review, British born her administrative law system, and the emergence of public law and private law, O

  The British have their own legal traditions, but also very cherish their traditional. Since the L2 century after the Norman conquest of England, the ordinary courts gradually formed, and won the high prestige. It is applicable to the common law case, in a country can only have a legal, government and people must be obeyed by all of them. During the Stuart Dynasty, the king had extensive use of "star court" to arrest and trial subjects, suppression of dissent. After the Stuart Dynasty overthrew, out of the prerogative court antipathy, British people are more convinced that the "one country can have only one court", that is the general court. Any dispute in principle can be obtained finally solve the ordinary courts, courts should not be outside the court.

   Because of this historical experience, the British scholars to the administrative court of rebuke France is "protect the tyrannical administration, tools, very crooked not admit what administrative law. Later, they found themselves wrong, the French administrative court is able to provide the administrative remedy, administrative law development in the UK is irresistible. However, their tradition has been firmly to form, the UK has not set up the administrative court of the french. Even so, the British Queen's through 1977, administrative litigation cases Dvi Gran and Welsh within the scope of the focus to the Queen's bench (Queen's DiVision of the High Court), which actually becomes an administrative tribunal.

   Entered in twentieth Century, along with the expansion of government functions, administrative disputes increase sharply, the British court settlement of administrative disputes have become increasingly prominent role. On one hand, it promulgated the "Wang Quan law" (1947), "Administrative Tribunal and investigation" (1958), "human rights" (1998) and "tribunals, courts and Enforcement Act" (2007), the improvement of judicial review system and the related administrative adjudication system. On the other hand, the court in England to defend the rule of law, protection of human rights has also played a more active role.

  Because of the influence of British Empire, the British model in America and Commonwealth countries generally adopt. Today's Hongkong, is still a sample of ordinary court pattern.  

Three, the development of administrative litigation system in western countries

   The system of administrative litigation is a product of history of a specific country, has strong path dependent. However, no matter what kind of legal system, no matter what the legal tradition, regardless of the specific name, in the face of the settlement of administrative disputes social need, finally must achieve justice dispute resolution target. Administrative power must be restricted, administrative disputes must be resolved, the damage should be relieved, is law. An independent court to administrative organs constitute the mainstay of administrative relief system. At this point, the Anglo American and French German represents two of the world's major legal system took two different ways, but the same.

   Enter after twentieth Century, especially in the last half century, the western countries administrative litigation face some common themes. On the one hand, government regulation and service functions of unprecedented expansion, countries into "administrative state", the administrative organ of citizens have a stake in more. On the other hand, because the administrative affairs become more sophisticated and complex, representative institutions have to put a lot of power (including the administrative legislation and judicial) awarded the administrative organ, the prior legislation simply can not meet the needs of controlling administrative power. In this context, about in the last century sixty or seventy's, the relief of administrative litigation grows rapidly, greatly expanded and strengthened in both scope and intensity and the actual results.

   First of all, in the admissibility condition, range of action continues to expand, the plaintiff qualification gradually relaxed. Successive correction of the "king of privilege", "the relation of special power" and other restrictions on court theories and regulations, have been widely regarded in judicial review scope for internal management behavior. The administrative organ to exercise the legislative action, also become the court review object. Some social organizations to exercise functions of a public behavior, also in the administrative proceedings. The common law restrictions on civil litigation "privilege" theory was abandoned, the government for the welfare of the citizens is no longer regarded as gift but the duty of the government. In the field of environmental protection and a few legal recognition of citizens and groups, no direct interest in some administrative litigation qualification.

   Secondly, the standard of review, the court of the behavior rationality and the review of constitutionality strengthened. The court in the following Parliament enacted law at the same time, the principle and precedent legitimacy also create many relevant administrative behavior, such as the principle of good faith (faith protection principle), the principle of proportionality (moderation), the principle of due process. These principles and precedents constitute the basic principles of administrative behavior, but also an important content of the system of administrative litigation. The court (ordinary court or constitutional court) for administrative legislation is in line with the Constitution and international conventions, but also for review.

   Finally, and perhaps more importantly, the system of administrative litigation shaped got more widely recognized and more firmly established. The citizen and government disputes through litigation fair solution, citizens are infringed by the government to obtain relief, is considered to be part of human rights. By the court (ordinary court or the administrative court) for examination and supervision on administrative actions in accordance with the procedure, is regarded as the basic connotation of rule of law and the basic elements of good administration.

   It is the western countries for reference, Chinese explored the establishment of administrative litigation system in twentieth Century, the modern transformation of the basic realization of the administrative supervision and rights relief way.

                   The second section The modern transformation Chinese administrative supervision

Chinese administrative litigation system establishment and China modernization always accompanied, repeatedly experienced the. In the legal reform in late Qing Dynasty, tried to establish the administrative proceedings; the period of the Republic of China, has set up the system of administrative action simple. In the people's Republic of China, after a long period of absence, administrative litigation system emerge as the times require during reform and reconstruction of legal system. If you look at the modern history, the system of administrative litigation is a part of Chinese comprehensive social transformation process, is a process of change China national governance system.

   The decline of traditional one, administrative supervision mode

   (a) the traditional Chinese governance

   Since the Qin and Han Dynasty, agricultural economy, centralized politics and Confucian culture constitutes the basic characteristics Chinese society. For the management of the huge empire, at the central level, has a "government official", "the six provinces" or. The six part "as the core of the organization, shall be in charge of affairs. In all, the emperor sent officials, classification management. Between the imperial power and right, the central and local governments, form a kind of mutual dependence and mutual restriction relationship. To "Tang Liu Dian", "Ming Hui", "Qing Hui Dian" as the representative, the administration of ancient China (especially for institutions and official management) highly codification, at that time was complete, envy.

   By today's standards, the legal content Chinese ancient management subjects of extensive, involving land tax, labor market, river water, the military guard, sacrifice, honor, clothing, funeral, education, management of religious temples and management about the minority nationality areas. But in the Pacific's administrative affairs, relatively simple, mainly is the collection of payroll tax. The people and the government's direct contact, is mainly the people, criminal procedure (which is in accordance with the contemporary concept to understand). During the Qing Dynasty, Fu Tai county magistrate is the tube side of the herdsmen, judge, litigation is a part of his duties. But different from the modern state and county judge, county government is also different from the modern sense of the court. Erie County Ambrose anthology not to focus on the legal knowledge, judge is the focus of grievances rather than adults. The judge about flexible master the procedures and rules, the integrated use of intelligence, science, law, with the most convenient and effective but also the most for the parties to accept the way to resolve disputes, so as to maintain the stability and unity of the local society. Although in the Qing Dynasty appeared on a class of special legal profession, but the law occupation degree is still low.

   The traditional Chinese does not exist in modern administrative procedure, but the picket, own a complete set of accusation system. The central government set up the censor (Han and Tang dynasties after the formation of the censorate, Ming and Qing Dynasties changed censorate), special rectification impeach officials of negligence, prevent the official O people to people commit crimes in violation of the law, punishment decision, that the major grievances, to accuse, or even smell day listening to o occurred in the late Qing Dynasty Yang Nai Wu, Chinese cabbage in the case, the idea for today is not the case, but the stories -- families appeal, Beijing censorate say empress dowager, decree, the Xing Department review and later to Zhejiang officials -- is the way of supervision Chinese purge an epitome of the ancient.

   In general, China ancient and modem administrative law exist significant differences. First of all, China ancient administrative law to agricultural economy country, provide for oneself, a way of living and production constitutes the basis of society; accordingly, the administrative function is much simpler. The modern administrative law was born in the industrial society, many problems he faced in ancient times does not exist or is not outstanding, administrative management mode and the process is so much different. Secondly, the official duty, ancient China their guard, but not in the modern sense of the separation of powers. Separation of executive, legislative and judicial, in ancient China is not to be found; the judicial system, judicial review are independent of administrative system, but have never even heard of it. Third, mainly to teach Chinese ancient country, emphasizing the benevolent man, pay attention to the official supervision, but not to protect the rights of the subject, the pursuit of the rule of law as the value orientation, also has not established the system of protection the rights of the subject of dispute settlement mechanism.

(two) the idea of legal reform in the late Qing Dynasty

   In with the west after the collision, the ancient Chinese civilization and also according to the original orbit, from the economic, political system, cultural values are the overall transformation. The first Western powers after the strong military attack, a person with breadth of vision was originally envisaged "Division Skills razed razed to the system", the westernization movement which xing. When the Qing Dynasty Jia Wu defeated Japan, Xin Chou again to the reform of the government, need to get more and more recognition. At the same time, in order to obtain the powers recognized, ranks among the civilized countries, and take back the consular jurisdiction, the government needs the legal reform in the round.

   In 1901 August, after the Eight Power Allied forces of national calamity, the issue imperial edict, that "the only change is the lifeblood of self-improvement, national security, which is Chinese Shengmin transfer", "good choice of the west...... Save France.'". In 1906 July, the Qing government announced that the preparation for constitutionalism, imitated the western system, at the same time requirements "the legal details carefully set". [8 3 in September of the same year. Prime Minister David help et al played on "administrative court official draft". The "draft" altogether 21, depicts the administrative court permission, composition, scope of accepting cases of administrative litigation, trial procedure blueprint. Yi Xu et al of the claim, "according to the constitutional monarchy system, legislative, administrative, judicial three right

And Zhi, the exclusive, coordinate ", the judicial system used in Germany, Austria, Japan and the ordinary courts and administrative court two separate judicial system.

   In 1911, amendments to the law library agreed "administrative judicial institute to establish law draft", waiting for approval. But not enacted, beacon four, building collapse, the system of administrative litigation is a cake.

   Two, the period of the Republic of China Administrative Litigation

   Throughout the Republic of China, a major controversy involving administrative litigation system is a judicial system and judicial system of two yuan. In 1913 the "constitution of the Republic of China (draft" that "the draft constitution of Tiantan") the provisions of article eighty-sixth, "the court according to the law to accept civil, criminal, administrative and other litigation; but the Constitution and the law has special provisions, the limit." In 1923 the "constitution of the Republic of China" (namely "Cao Kun constitution") ninety-ninth follow the rules. This shows, the Framers' once considered a judicial system. However, "Tiantan is a draft constitution", because of bribery was notorious repute Cao written by Cao Kun constitution are immediately deposed and scraps of paper. A dual system of justice, the whole period of the Republic of China are not implemented.

   (a) in the early Republic of China's Administrative Litigation

   The Republic of China was born, Song Jiaoren proposed the idea to set up the administrative trial, the abolition of the censorate academy. Later, the name of the administrative trial is replaced by the "Ping Zheng Yuan". "Provisional constitution of the Republic of China stipulates:" Tenth "people to prejudice the rights of the illegal behavior of officials, Chen Suyu Ping Zheng Yuan right." Rule forty-ninth: "the court in civil litigation and criminal litigation law trial. But on the administrative litigation and other special litigation, prescribed by other laws." Because of the tense political situation, the relevant administrative litigation law can not make, Ping Zheng Yuan to set up. In this context, the first case of administrative proceedings in the Republic of China China called university business of the case of Liu Kuiyi v..

     In the first year, Yuan Shikai accepted a petition of University, agreed to before Qinghan Lin Yuan housing to the University and University receiving house property, the Ministry of industry and commerce occupation has been found. Negotiations both sides do not want, and industry and Commerce Department of university to the capital district court. Liu Kuiyi was the Ministry of industry and Commerce chief, therefore become the defendant. However, Liu Kuiyi is not the identity in the submission of defence, replaced by a letter to the local court: before the university application, the State Council has agreed to pay the real estate business department: "the case for administrative sanctions and relationship and contract law, the absolute difference", the district court does not have jurisdiction. And the plaintiff agents Wang Youling claimed that the district court has jurisdiction over the case: "when the administrative tribunal did not stand before the people according to the law, of course, have the right to litigation judgment in court. Or that people without complaint, not the rights contained in the Constitution on the transverse exploited?"

   (two) the period of Beiyang Government Administrative Litigation

   In 1914 March, the Northern Warlords Government to President J promulgated the "Ping Zheng Yuan compiled to", and in order to set up Ping Zheng yuan. The same year in May, promulgated the "administrative procedure regulations", from the Senate agreed soon "administrative procedure law" which is the earliest implementation of administrative procedure law Chinese history.

   In accordance with the law, Ping Zheng Yuan directly to the president, observing the illegal administrative officials and not positive behavior, Ping Zheng Yuan accept people to report the most senior central or local administrative offices of illegal action, or for the people of central or local administrative offices of illegal punishment after the shield against report, as well as the Ping Zheng Yuan Su political history of official mention the rectified; but the Ping Zheng Yuan shall not accept compensation litigation. Ping Zheng Yuan ruling, binding for matters relating to the case. The Ping Zheng Yuan ruling may not request for retrial. The decision to withdraw or change of the competent authorities of illegal punishment, the Ping Zheng Yuan petition president to the competent authorities for the batch.

   Ping Zheng Yuan 3 trial, each tribunal to comment. 5. The president and President of reason according to the petition or dense recommended appointment. Assessment and its political history of non punishment or disciplinary punishment announcement and other legal reasons, may compel a retirement, transfer and reduce salary. According to incomplete statistics, Pingzhen courtyard served as assessment 80% comes from a traditional Cody (the former scholars, Juren), about half of the students background (almost all learning, "be the best and the brightest Hosei)".

   Since its establishment in 1914 to 1928 withdrawal period, Ping Zheng Yuan accept and referee hundreds (maybe thousands) of cases, involving property, water conservancy, taxes, mining, business, education, and other more than ten collection, field personnel matters. The major, have legal bureau staff Liu Jiansu prime minister without removal of the case, cancel the interior minister Sun Hongyi's decision also led to the minister to resign. As of today, perhaps the most famous was Zhou Shuren v. Board of Education (Lu Xun). In 1925 August, the Minister of education Zhang Shizhao Lu Xun supports the National Women's normal university student movement, to "collusion against students, Department order" on the grounds, and was relieved from the post of the Ministry of education organization. Lu Xun to the appellate court to bring an administrative lawsuit. In March the following year, Ping Zheng Yuan decision to revoke the decision of Ministry of education. The reason is: whether the plaintiff is "against the order of the Ministry of information," the defendant failed to prove; even if true, relates to the civil service disciplinary punishment by Civil Service Commission

Meetings will sanction, the defendant has removed from the line to existing laws and regulations inconsistent with the program. Some scholars according to the statistics of 186 copies of the verdict, found the Ping Zheng Yuan decision maintain administrative behavior (administrative) accounted for 54% , revocation accounted for 24%, accounted for 22% of the change. As the first administrative court China history, Ping Zheng Yuan seems not all "may serve as a specimen" decoration, but should not be simply described as to deceive the people.

   (three) the administrative procedure law in the period of Nanjing government

   The United Chinese, the provisions of the Nanjing national government in 1928 November revised "law" the Judicial Yuan, the Judicial Yuan by the administrative department of justice, the Supreme Court and the administrative court; "administrative court in accordance with the law shall be in charge of administrative litigation cases". In 1931, the national government promulgated the "administrative procedure law" and "administrative court organization law". The former after several amendments, provisions from the initial 27 to 30.

   In general, the administrative procedure law of the national government followed the Beiyang Government Yun system, but there are also some changes. For example, renamed the administrative court Ping Zheng Yuan, belonging to the Judicial Yuan, is in nature the judicial organs. In the concrete system in the administrative litigation, the plaintiff may incidentally filed a request for damages, the parties to the administrative court may bring a retrial to the hospital, administrative litigation judgment by the administrative court is the Judicial Yuan designed a national government order execution.

   During its existence, the administrative court is usually a year accepts more than 100 pieces of administrative litigation. From 1933 to 1947, a total of 712 pieces of the trial of administrative cases, average less than 50 a year; in which case, all rejected the plaintiff's claim accounted for 61%. Compared to the hundreds of millions of population in the world, the number of accepting the administrative court is not worth mentioning, it protects the rights of the people are Something is better than nothing. function. In the political absolutism, social unrest, even years of turmoil, the administrative court symbolism obviously more than its actual function.

   With the "war of liberation", the Nanjing national government was announced the abolition of documents, including the "administrative procedure law", "Six Laws", make a clean sweep of the Chinese. But in the Taiwan region of China, this law has been revised many times, in implementation, the administrative litigation system is booming in twentieth Century after 80 years.

   ThreeThe ups and downs of the new China administrative litigation system

   In the people's Republic of China for thirty years, administrative litigation and China independent. Chinese administrative litigation system in modern meaning, is only the most recent twenty years phenomenon. Behind the ups and downs, is the changes of the times.

   (a) the founding of administrative litigation

   Establishment of the people's Republic of China at the beginning of, also had the idea of establishing the system of administrative litigation. September 1, 1949 "China people's Political Consultative Conference common program" nineteenth stipulates: "the people and people's organizations have the right to apply to the people's supervision organs or the people's judicial organs against any state organ or any public official of illegal acts." In December of that year, the approval of the Central People's Government Committee of the "Supreme People's court trial organization regulations" provisions, the Supreme People's court with civil, criminal and administrative three court.  J

   There were also a number of separate provisions of laws and regulations, the litigious nature of administrative litigation. For example, 1950 "land reform law" provisions of article thirty-first, I 15 others had different opinions on the components defined democracy evaluation, district government approval, "in L5 days after the approval of the county people's Court of appeal, the county people's court execution". In 1952 the government institute "about the movement against the" five evils "in the establishment of the people's court" businesses to save examination committee of law-abiding law-abiding law-abiding, basic and half half illegal users validation and processing refuses to accept, may request the people's court or the people's court cities and processing. In addition, 1953

    "Input output commodity inspection regulations", 1954 "Harbor Management Provisional Regulations" also have similar provisions but in fact, the administrative tribunal of the Supreme People's court set up later, always missing. Although some law granted civil administrative litigation right, even if not also rare lawsuit. Although the "constitution" in 1954 ninety-seventh to affirm, citizens of the national staff of any illegal, have the right to sue the state organs at all levels, but in practice, the court in addition to the trial of criminal cases of illegal administrative crime, never interfere in the administrative dispute. The 1957 anti rightist, even the supervision department supervision organs and procuratorial organs function also suffered a blow. Since then, the administrative disputes are handled by the Party committee, government, and the court has nothing to do. After the "Cultural Revolution", smash the public, inspection, law, let alone the administrative litigation. The 1979 "people's court organization law" is directly from the Administrative Tribunal Rules set.

   Why the new China for over 30 years, has not established the system of administrative litigation, administrative litigation of constitution and laws is committed even also practise? Professor Jiang Mingan had incisive analysis, here again with his own understanding, are outlined below. First, political centralization system. This system to realize the creed of the party to the action target, the policy of the party and the instructions of the leadership as the basis. The class struggle is everything, the revolution is everything. Decentralization and human rights will hinder the leaders and policy carry out, hinder people keep step with forward. So, human rights must be down, or even abandon, state agencies' powers must abandon. Secondly, the economy and public ownership is associated with planning system. Under the planned economy system, the citizen attached to the unit, the unit attached to the government. People are "have nots", not the identity subject independent and equal legal status in front of the government, not a lot of need to safeguard the rights and interests. Finally, is the cause of ideology. China traditional society is "people do not sue officer" concept, in the new period of socialism, this concept continues in a stately appearance under cover: the government serving the people, always represents the interests of the people, the people can only love and support their government, where there are people to people's Government of the truth?

   (two) the rise of administrative litigation era of reform and opening up

   From the China experience, economic structure to give citizens the right to subject status, protection of national institutions division of political system, and the recognition of citizens and government equality ideas, is necessary to establish the system of administrative litigation social conditions. In twentieth Century 80 time, when Chinese carry out reform and opening up, political, economy, idea began to transition, administrative proceedings system will emerge as the times require.

   In politics, in 1978, the Third Plenary Session of the eleven Communist Party of Chinese bring order out of chaos, the security of the people's democracy, improve the socialist legal system's slogan. The meeting stressed that "the law, the law, strict law enforcement, law breakers", put forward to strengthen the legislation, the procuratorial organs and the judicial organs to maintain their independence. After that, they have put forward the implementation of separation of Party and government, government agencies, the reform of the cadre and personnel system reform, improve the socialist democracy, socialist legal construction and reform of the political system of the objectives and tasks.

   In economy, the rural people's commune disintegrates thoroughly, the production team collective labor to "go it alone" (production contract responsibility system). While in town, 1984 "of the CPC Central Committee decision on Reform of the economic structure" to establish the separation, expanding the autonomy of enterprises. Foreign enterprises to enter the Chinese blossom everywhere, individual, privately owned economy, the work unit system began to fall, the boundaries between the state and society increasingly clear. Citizens obtained its independent position in the government. Vague policy and direct instruction is unable to meet the needs of national governance, government has made more and more in the field of administrative law.

   In concept, the original ignore people's rights approach is criticized. In the intellectual world prevalence of ideological emancipation voices, strengthen administrative legal system, the establishment of administrative litigation has become strongly appeal to the law. 1982 "constitution" stipulates that the forty-first, "(citizen) for any state organ or functionary of illegal acts, complaints, charges or complaints rights to the relevant state organs". Although there is no evidence of a clear intention to establish the system of administrative litigation, this provision was later also some scholars carried out, as the establishment of administrative litigation system according to the. From twentieth Century to the beginning of the 80's there are a number of provisions of the law, if a party refuses to accept the administrative behavior, may bring a lawsuit to the court. Although in the legislative process, officials considered himself head of the national emblem, on behalf of the state, not when the defendant, but the legislative leadership of persuasion, finally accepted.

  In this context, appropriate administrative litigation system. In 1987 October, report it Chinese Communist Party clearly put forward, "to make the administrative procedure law". Less than two years, the law on the introduction.

   (three) the transition is still in progress  

   In any sense, "administrative procedure law" is the product of reform and opening up. Because this transformation is still Chinese of society, the implementation of administrative litigation will inevitably encounter in the crevice of embarrassment.

   "Administrative procedure law" has just issued, many executives are hard to understand, or even resentment. Hundreds of size officials wrote a letter to the central object, questioned "with public officials, that we how to work?" Guangxi Guilin a mayor said: "the masses against the mayor, this is the grandson grandpa." Some people say: "we do a case, but also recognized by the court, which is the National People's Congress had nothing better to do want to come out." Many agencies blocking of administrative litigation, not "when the defendant". Even, law enforcement, there are more than a hundred officials jointly wrote a letter to the Central Committee, accused of "administrative procedure law" is a "product" of bourgeois liberalization, cancel.

  "Administrative procedure law" was implemented nearly 20 years later, at the beginning of the conflict has been slow: administrative organs have gradually adapted to the defendant of administrative litigation system, cancel the voice is disappear from the scene. Administrative litigation has made great contribution to the change of concept, improving the administrative law enforcement officials and the public, improve administrative legislation. However, the implementation of administrative litigation is still facing difficulties. "Administrative procedure law," declared the ideal of rule of law, but can not be Chinese constitutional way. Fundamental change in administrative litigation system, to promote overall social transformation, especially a healthy growth of civil society, the construction of a democratic political system. Optimistic about, this is still a generation time. Before that, to borrow the words of Mr. Tang Degang, we are only in the tempestuous waves through the unpredictable, ever-changing nature of things and the "history of the three gorges". This is the contemporary Chinese administrative litigation system.

             The third section "The formulation and implementation of the administrative procedural law"

Process of making a "administrative procedure law"

(a) "before making the status of administrative procedure law"

   In 1989 the "administrative procedure law" marked the full establishment of administrative litigation. But strictly speaking, contemporary China establishment of administrative litigation system is not originated from the "administrative procedure law" promulgated. In the early 80 s, there are a number of legal Chinese continued to set today that administrative litigation. Income tax law on Sino foreign joint venture enterprises in order to meet the needs and the development of the "open" (1980) and "the foreign enterprise income tax law" (1981) separately, joint ventures and foreign enterprises with the tax authorities on tax dispute, may bring a lawsuit to the court. Since then, "economic contract law" (1981), "national construction land acquisition regulations" (1982), "marine environmental protection law" (1982), "the maritime traffic safety law" (1983), "land management law" (1986), "the Public Security Management Punishment Ordinance" (1986) and a series of the law, has also made similar provisions. To the "administrative procedure law" promulgated, the provisions of the laws, administrative regulations may bring an administrative lawsuit to the Court reached more than 130.

  An important law related to the administrative litigation, civil procedure law enacted in 1982 "(for Trial Implementation)". The act third provisions of the second paragraph: "the law by the people's courts in the trial of administrative cases, apply the provisions of this law." This provision, although simple, but provides an important basis for the administrative court case program. Thereafter, the court of a number of administrative litigation cases, involving trademark, tax, forest, environment protection, food hygiene, drug management, land acquisition and other fields. With the "Regulations on administrative penalties for public security" and "land management law" enforcement, administrative cases increased substantially. In 1987, the first instance administrative cases from 632 last year jumped to 5240, the public security administrative punishment cases accounted for 45%, accounted for 28% of the land administrative punishment cases. As of the end of 1989, the court of first instance administrative cases accepted a total of 26805 parts, which the public security, land accounted for more than 1/3 (the rest are forestry, city planning, food hygiene, industrial and commercial, taxation, environmental protection and other management areas). From the administrative action type, the vast majority of administrative punishment.

   At first, the court has not yet set up administrative courts, administrative cases by the economic court. In 1986 October, Wuhan City Intermediate Court and the Hunan province Miluo county court set up the administrative tribunal of the earliest. Two years later, the administrative tribunal of the Supreme Court declared. Other courts have established administrative tribunal. By the beginning of 1989, although the "administrative procedure law" has not yet promulgated, grassroots courts, 39% has set up an administrative tribunal. By the end of 1990, "administrative procedure law" the implementation of the initial, the administrative tribunal has been established, administrative adjudication personnel to reach 9732 people, 3.2 people per family.

   In the meantime, the Supreme People's Court issued a judicial documents, apply the law on administrative litigation as a supplement. These legislative and judicial practice, to some extent affect the provisions of the administrative procedure law of the "later". One of the provisions, the administrative court case does not apply mediation.

   (two) "administrative procedure law" in the legislative process  1

   In 1986, "the general principles of the civil law" after the enactment, in one of the NPC Standing Committee (LAC) held a meeting, he served as director of the Bureau, new China first government, the NPC Law Committee consultant Tao Xijin, put forward the development of the "new six" claims: "we abolish the Kuomintang six laws, but we can't do without its own legal system. I think we should set up a new method. Now, the civil law, civil law, criminal law, criminal procedure law has, is the lack of administrative law and administrative procedure law." The NPC Standing Committee Law Committee of the secretary general, director of the Wang Hanbin very much agree with.

   "Draft" of the "administrative litigation law by administrative legislation research group" is responsible for drafting. The study group is in Tao Xijin initiative, was established in 1986, is composed of the scholars of administrative law and from the practice department law committee, the Bureau, courts and other experts. The study group consisted of 14 people, team leader Jiang Ping, deputy team leader Luo Haocai, Ying Songnian, Xiao Xun, Gao Fan, and other members are Fei Zong, Zhu Weijiu, Jiang Mingan, Zhang Huanguang, God, the skin pure CO; Gong Xiangrui, Zhang Shangli, Wang Mingyang was hired as a consultant. The main task of study group is significant administrative legislation to provide "blank", namely, to our country need roughly the content of administrative law making should be included in the proposed a framework, as a proposal for legislation reference. In 1987 February, the research group of administrative legislation began to draft completed in August 1988, "Administrative Procedure Law (Draft)", submitted to the NPC Law committee.

In 1988 October, the Seven meeting of the fourth NPC Standing Committee considered the "Administrative Procedure Law (Draft)". In November 9th of that year, according to the decisions of the Standing Committee, the draft in the "people's Daily" published the full text, extensive solicitation of opinions. The Law Committee received a total of the central and local state organs opinion 130 copies, 300 copies of the citizens advice directly to the Law Committee of the. Since then, the Law Committee held four meetings, for part of provincial and municipal people's Congress, court, procuratorate, the relevant departments under the State Council and legal experts, on the draft made many changes. The Standing Committee of the Political Bureau of the CPC Central Committee also conducted two studies. After the seven session of the National People's Congress Standing Committee of the sixth session of National People's Congress for deliberation, decided to draw. In April 4, 1989, the two session of the seven National People's Congress passed the "administrative procedure law", is scheduled for a year and a half after the October 1, 1990 implementation.

The main contents of the two "administrative procedure law"

(a) "mingaoguan"

"Administrative procedure law" from the outset, the purpose of the legislation is the "protection of citizens, legal persons and other organizations of the legitimate rights and interests, safeguarding and supervising the exercise of administrative powers". The provisions of article second: "the citizen, legal person and other organization believes that a specific administrative act administrative organ or its personnel infringe upon their lawful rights and interests, have the right to bring a lawsuit to the people's court in accordance with this law." Therefore, to establish the basic meaning of administrative litigation Chinese "mingaoguan".

"Mingaoguan" means, the legality of administrative litigation mainly solves the administrative behavior, rather than the administrative relative person legally. Accordingly, the administrative trial is "the defendant". Administrative litigation principle requested by the defendant on the legality of the relevant facts and legal basis for the burden of proof. If the defendant cannot prove the legal acts, the court should decide to cancel the administrative behavior, or confirm the illegal, invalid.

In the "administrative procedure law" enacted, some places have tried by administrative organs of the citizen, legal person administrative litigation to resolve administrative dispute. This pattern in the western (especially common law countries) are also common. But the "scope of the administrative procedure law" ruled out "officer told the people" mode. The dispute in the process of administrative organs exercise of administrative powers and citizen, legal person or other organization, the administrative organ no longer bring a lawsuit to the court. The premise of this system is China, administrative organ has the administrative priority, can directly in accordance with the law, the citizen, legal person or unilaterally the beefy organization to make legally binding decision. In the administrative organ fails to perform the obligations established by the administrative decision, the law also does not give the administrative authorities to enforce the right circumstances may apply to the court for compulsory execution alone though, "case officer told the people" is still sporadic in the judicial practice, to establish "the officer told the people" of the system are also can be seen.

"Administrative procedure law" also ruled out the "official officials" mode. State organs in exercising their functions and powers in the process of solving disputes, not to appeal to the court. This is mainly because the relatively low status of court in the political system, not enough to the great responsibility of functions of the division between responsibility for resolving national institutions. Exclude "an exception, the official" is, if the administrative organ exercising authority in the process of other administrative organs to make similar, citizens, legal persons or other organizations in the decision, the latter as the private party in the administrative management, can bring an administrative lawsuit according to law.

(two) the General Court Administrative Tribunal

In the legislative process in the administrative proceedings, the trial organization by the ordinary courts and administrative courts bear the administrative court, set up in the ordinary courts set up outside the administrative system and administrative system, has the very great dispute. Even today, the establishment of administrative courts call students didn't disappear.  

"Administrative procedure law" third stipulates: "the people's court shall exercise judicial power independently over administrative cases... The people's courts shall set up administrative tribunal 'handling of administrative cases." This is the kind of compromise model. On the one hand it denied to set up separate administrative courts offer and in the administrative system to settle the administrative disputes claims, the jurisdiction to the ordinary courts. On the other hand, it in the ordinary court interiorestablishment Special Administrative Court, the trial of administrative cases. In practice, the people's court special court, not the trial of administrative cases, also do not review and implementation of the administrative organ for execution of the specific administrative act cases. Although this is only the internal judicial function of the Court Division, but compared with the civil, criminal, this more clear division of labor.

"Administrative procedure law" is just to have been formed in the process of legislation "administrative division of the people's court" pattern recognition, but also more in line with the reality of the Chinese. As in the administrative trial organs in the administrative system, has the independence and neutrality of the administrative system. At the same time, because of the specially set up courts for the trial of administrative cases, but also conducive to the accumulation of administrative trial experience, improve their professional. More importantly, administrative review of administrative acts taken procedure mode, theory helps to guarantee the openness, fairness and justice. Administrative litigation system in the administrative killed outside the administrative dispute resolution system, also gave birth to the administrative reconsideration system within the administrative system. Two complementary in function, constitute the mechanism of the administrative dispute resolution.

(three) the right to judicial review Limited

In view of the administrative litigation is still at the starting stage in Chinese, "administrative procedure law" granted the power of judicial review is still quite limited.

First, the scope of the court to the provisions of law. Notably, administrative behavior, administrative organs of the civil service administrative organs are universally binding behavior, have been excluded from the scope of accepting cases.

Secondly, the court review benchmark co.. Court of administrative regulations and local regulations in principle as "basis", not to mention the constitutional review of law. On the discretion of administrative organ, the court also only in the "breach of privilege", "injustice" limited circumstances, may intervene.

Third, the court relief means more limited. The administrative decision is illegal, the court can only withdraw cannot change, unless it is obvious unjustness of administrative penalty. Related to administrative adjudication, administrative confirmation of civil legal relationship, is generally believed that, in the administrative proceedings the court can not judge (the Supreme Court later explained, through administrative incidental civil litigation).  The judicial review in later practice has many problems, these problems have brought the discussion.

Implementation of "administrative procedure law" of three

"Implementation of administrative procedure law" is in many aspects. The following separately from it for the settlement of administrative disputes, promote administrative law and promoting law research three to explain.

(a) "administrative procedure law" to resolve disputes with

Compared with the original system, administrative litigation system establishment changed administrative dispute solution: the parties do not always to the "superior" to seek relief, but to an independent administrative systems of the body to prosecute. At the same time, it is also more or less changed the game parties and administrative organs of administrative system: leaders no longer bother some controversy, but they also have no right to say these disputes. This may be another effect of this system.

Since the "administrative procedure law" to 2010, courts throughout the country and concluded more than 160 administrative litigation cases (excluding non litigation cases of execution). These cases were involved in the administration of public security, the burden of farmers, the autonomy of enterprise management, the ownership of the land, city planning, industrial injury and social issues. From the point of view of types of administrative acts, in addition to the administrative punishment, administrative license, administrative adjudication, administrative coercive measures, there are a considerable proportion of the administrative act. A rough estimate, about 1/4 of the plaintiff relief to some extent by litigation. Relative to the current range, large scale social conflict, this is not a satisfactory result. However, if there is no administrative litigation, a lot of people here will get no relief, many people will complain without the door, many people will still go on in their way. If there is no administrative litigation, administrative law enforcement may also have more arbitrary, more frequent and more because of administrative law, and administrative disputes.

(two) "to promote the administrative procedure law" in rule of administrative law

 Can say, "the administrative procedure law of the people" is the first part of the history of the Republic to protect civil rights, supervision of administrative power is the main objective of the legislation. In this sense, it is a person with Chinese of contemporary administrative law.

 First, it promotes the concept of administration according to law of growth. "Administrative procedure law" has built a "mingaoguan" dispute settlement mechanism, the establishment of administrative action validity examination standard. Its formulation and implementation to enlightenment role. If there is no administrative litigation, quite a number of administrative officials may still do not know "beyond the terms", "violation of statutory procedures" for what. Not only that, the implementation of the law Chinese soon, the government has put forward the "administration by law" and "rule by law". Since then, the State Council promulgated the "decision on comprehensively promote administration according to law" (1999) and "implementation outline for comprehensively promoting administration according to law" (2004), which proposed the construction of "government by law" targets and programme. On the government's work report and the provincial leadership of the public comments, "administration by law" and "government by law" has gradually increased the frequency of,  Even more than the "market economy".

Secondly, to promote the perfection of administrative legal system. The "administrative procedure law" of the press, China has formulated the "Regulations on administrative reconsideration" (1990, after the "administrative review law" replaced), "State Compensation Law" (1994), "administrative punishment law" (1996), "legislative law" (2000), "administrative compulsory law" (2011) and a number of other to protect citizens' rights, standardize administrative power is legal, regulations aim. Involved in the specific administrative act management legislation in the field, but also pay more attention to protection of the rights of citizens, pay more attention to the coordination and administrative litigation system. Thanks to these laws, administrative law system more perfect, civil and administrative power allocation is more balanced.

Third, cultivate the occupation groups of administrative law. With the implementation of the administrative proceedings system, the court has produced a new group -- "administrative judge", the number of tens of thousands of. In part by the law, administrative organs inside the "government legal system organization". In the legal profession, began to appear a few familiar with the administrative litigation system and the administrative litigation for the main business of lawyer. There is no doubt in the legal scholars, also have such a special group. Such a legal occupation groups on the administrative litigation system and the implementation of the development of administrative law, to continue to push.

(three) "to promote the law of administrative procedure law"

"Administrative procedure law" in the formulation and implementation of Chinese also greatly influenced the development of administrative law. The administrative law circle emerging participated in the "administrative procedure law" of the draft, a consensus in the debate, many concepts in administrative law to finalize the design in legislation. "Provides unlimited discretion springhead carrying out of the administrative procedure law" for the study of administrative law, the administrative law in the rapidly expanding the research content and the research depth. If there is no "administrative procedure law", the administrative law won't have today's prosperity.

First of all, "administrative procedure law" constitute an important topic in the study of administrative law and the basic perspective of administrative law, and truly earned the independent discipline. The administrative litigation law occupies a significant length of administrative law research, constitute a core area of administrative law. And not only so, administrative litigation also constitute the basic perspective of administrative law scholars discuss China problem. Even on other issues, considerable discussion is still based on administrative litigation as the imaginary scene, as is the case in the judicial review for the test. In recent years, some scholars began to realize that the "center of judicial review principle" the limitations of administrative law, but still have to struggle to go beyond this framework.

Secondly, "provides a conceptual system used in the administrative litigation law" term for the administrative law. This glossary includes: authorized by laws and regulations, the administrative organ of the organization, the scope of accepting cases, administrative behavior, the specific administrative act, the administrative punishment, administrative coercive measures, personal rights and property rights, legitimacy, inadequacy of essential evidence, in violation of the statutory procedures, beyond the authority, abuse power, injustice, the prosecution period, the burden of proof liability, compulsory execution, etc.. Although these concepts are often need to be explained, but if does not grasp the basic concepts, whether a beginner or overseas researchers, will be very difficult to understand the system of administrative law China.

Third, "administrative procedure law" provides some rules and principles of administrative law. For example, the independence of court trial, the scope of legal, bear the burden of proof of the defendant, to review the legality of regulations and standards, applicable, executive prosecution does not stop, etc.. The implementation of these basic rules are not "administrative procedure law" established "and" administrative procedure law, administrative law research will be empty talk, even Arabian Nights. The rules and principles, including the discussion on problems, provides a new starting point for the system reform.

FourProblems and prospects in administrative litigation system

"The status of implementation of administrative procedure law", is a concern, worrying problem. Early in the beginning of the implementation of this law, Professor Gong Xiangrui and other scholars had done their system research, points out its problems existing. Some foreign scholars through field investigation and statistical analysis, also described a bleak picture for us. On the difficult, difficult decision, execution, is a common phenomenon in administrative litigation. Some of these problems is the "administrative procedure law" itself, through the interpretation of the law or legislative perfection; some belong to the problems of the judicial system, the need for more in-depth reform to solve.

(a) "defects" legislation on Administrative Procedure Law

For the "administrative procedure law" defects of legislation, the Supreme Court in its scope of authority, has as much as possible by judicial remedy. This effort is reflected in the Supreme Court in 1991 issued "on the implementation of (the administrative procedure law of the people's Republic of China) views (for Trial Implementation)" (hereinafter referred to as the "comments") and 2000 (issued "on the implementation of the administrative procedural law of the people's Republic of China) interpretation of several issues" (hereinafter referred to as "some explanation"). In addition, the court also issued a related evidence in administrative litigation, administrative litigation, administrative proceedings under the jurisdiction of the withdrawal of judicial interpretation.  However, some shortcomings of "administrative procedure law" is the Supreme Court judicial interpretation can not be solved, it must be modified through legislation. Mainly has the following several aspects: first, the scope of administrative litigation should be expanded. Normative documents, at least the regulations normative documents, should be included in the scope of the court. Second, the standard of judicial review should be more clear. Shall authorize the court to the administrative discretion review powers conferred on the court, the local laws and regulations of the legitimacy of the review power. Third, the court's decision also need to expand. Increase change right court properly, to allow the original, the defendant reconciliation and mediation. Fourth, administrative litigation procedures should also be more careful. The lawsuit unstopping executive principle should be corrected, the retrial procedure need to improve. For this problem, the academic and practical circles have made a lot of discussion, here not elaborate.

(two) defects of administrative procedure law in the judicial system

Compared with the legal provisions of the defect, the defect of the judicial system more deadly. If the court has enough independence and authority, to overcome the defect of legal provisions in the judicial process. Common law countries experience proves this point. If the courts do not talk about the law, so most of the debate is a waste of breath, the best legislation only Something is better than nothing. Numerous cases of administrative litigation China illustrates this point. The former president of the Supreme Court Xiao Yang has used the "localization of judicial power, the judicial activities of judges, public administration occupation" to summarize the main problems existing in the current judicial system. After a few years, these problems are still plagued by the court, judicial corruption seems to become aggravated, the public trust in the judiciary be reduced without increasing. Judicial examination system of Judges Professional problem, but the administrative trial, the judge professional or a harelipped problem, so that the Supreme Court had to emphasize that "to strengthen the team construction" administrative judge, in accordance with the requirements of regulation have administrative trial personnel, pay attention to keeping the business backbone. In many problems of entanglements, at least in the administrative trial, the court lack of independence and authority is the main crux of the problem. The local court of people, money, were subject to the local party and the local government, the actual capacity of local court adjudicate according to law administrative dispute, the protection of civil rights is very limited. The judges exercise judicial authority, sometimes to bear the risk of accident; even if the parties win the lawsuit, often also scarred. The court independence and authority of the missing, the most obvious decline in reflect the "administrative procedure law" after the implementation of the court of first instance by the number and variety of closing the.

Figure 1:

Through the practice of more than 20 years, administrative litigation has several obvious features: first, the overall growth in number of administrative cases, but each stage fluctuation obviously. The implementation of "administrative procedure law", the number of the court of first instance administrative cases doubled in 1991, but after a few years of slow growth, has experienced rapid growth in twentieth Century 90 time metaphase and after a period of wandering, in recent years continues to grow (see Figure 1). Second, the plaintiff withdraw, dismissed the case prosecution and non decision was always very high. In 1987, the proportion of non judgments only 26.8% , then all the way higher, after a slight decline in recent years experience, rise again, to reach 71.8% in 2010 the highest historical value, or even slightly higher than the proportion of non judgments in civil cases. Third, the proportion of the plaintiff is relatively low, and in recent years tends to decrease. In the case of the judgment, support the plaintiff (including the cancellation or change the administrative action, illegal or invalid, confirm the order of execution), over the years in 17% fluctuated, on the whole than the support of the defendant. But in recent years, the decision to support the ratio continued to decline, to 7.8% in 2010 the lowest point in history (see Figure 2). The following will be the judicial policy and local court senior agency response to explain the dynamic change of practice in administrative litigation.

Figure two:

1990 October implementation of the "administrative proceedings law" to expand the scope of accepting cases of administrative court, 1991 cases doubled. However, the legislators originally expected administrative cases "surge", the court to deal with the situation does not arise. After two or three years, the number of administrative cases has been struggling in the level of 1991: the year before more than 2 administrative cases, an average of less than 10 court. Some grass-roots courts throughout the year there is no administrative cases, administrative division of a deserted house. In some places, let the administrative trial divorce, criminal private prosecution cases like, individual court administrative tribunal set up simply to soon withdrew.

"Administrative cases, administrative tribunal less" no case to trial, attracted widespread attention in the court system. From the Supreme Court to various reported to the local court and leadership speech, have asked the "bold case", "open up the source". In 1993 October, the Supreme Court held the second National Conference on administrative trial court administrative trial vice president Ma Yuan pointed out that "some local administrative cases", "quite one part case court shall accept and not accepted", and asked the courts at all levels "aggressive law case, as soon as possible to solve the difficult of administrative litigation. The problem of" o some local high, intermediate court leaders also stressed that "if the positive BOLD case became the first sign of the current administrative adjudication can adhere to strict law enforcement, which is open and work situation of the". Many places at the indicators, fixed on the number. For a time, all over the court each shows special prowess, "looking for rice pot"; but the most convenient and most often means, is a party prosecution. "To come in". Beijing Haidian District court "positive cases, efforts to open up the source" experience said, "(we) on whether it belongs to administrative cases do not, take the first case, determine the re in trial way, to ensure that the administrative case case." These "catch on" measures and efforts to finally let the number of administrative cases within a few years the rapid growth. In 1997, a trial of administrative cases for the first time more than 90000 pieces. However, the first income not "easily" found out "to" get in, "more" found out "the proportion of the less. The verdict form closed (including the decision to maintain and the decision to withdraw, change) the proportion of decline, since 1995 has been hovering around 30%, in 1997 fell 27. 4% trough. Unable to judge cases had otherwise digest (e.g., dismissed the prosecution, trial, which ended) mobilization of withdrawal is a common way. A survey found, the court for difficult cases has been reluctant to trial and sentencing, even reluctant to put on record, until the withdrawal. Withdrawal rate growth unusual attention, in 1995 after the withdrawal rate reaches more than 50%, 1997 has reached 57.3%.

The top judicial alert the phenomenon of high withdrawal rate. The Supreme Court in charge of the leadership many times in the internal meeting court systems point out that the withdrawal rate is higher, in principle agreed to "solve" at the same time, stressed that the decision will be bold decision, not unprincipled mobilization withdrawal. After about 1995, some courts leadership of the speech and the court's work report repeatedly mentioned the problem of high withdrawal rate. In order to reduce the withdrawal rate, some places in the assessment to reduce the withdrawal rate as an indicator. For example, the high court of Jilin Province, specialized documents, strict requirements around the court, especially the grass-roots court administrative withdrawal cases closing rate not to exceed 30%, and the important condition for choosing "administrative trial court masses satisfaction" and "the satisfaction of the masses as the administrative judge". In 1998 after the withdrawal rate appears relatively substantially drop, to form closed slightly up judgment.

The judicial policy seems to play a role, but also brought significant side effects. First of all, because the court could not like before, frequently through the mobilization of withdrawing to settle a lawsuit, encounter difficult cases simply will not be accepted. Results of accepting the case count back ten years sustained rise, a substantial decline in abnormal. Secondly, judgments and not as imagined increased significantly, while the other end of the trial, the prosecution dismissed by way of increasing. In 2002, the "other means" settlement account for the total number of 1/4, which rejected the prosecution to a record 15.2%. A few years after 2002, the number of first instance administrative cases hovering around 100000, the withdrawal rate stable at about 30 010. This figure means that all kinds of cases in the court concluded, the administrative cases accounted for about 1.8010, an average of about 30 grassroots courts.

From the beginning of 2006, mutations in the wind, coordination and solution into the new mechanism for handling administrative cases in court "". In the "harmonious justice", "mediation" under the slogan, the Supreme Court issued a series of encouraging specialized coordination of judicial documents, local courts have also introduced specific policies to promote the coordinate to solve administrative cases. For example, the high court of Liaoning Province issued a notice of administrative cases, the coordination of the settlement rate as an index into the "administrative trialComprehensive evaluation methods ", the provincial court administrative trial coordination settlement rates so sharply. The higher people's Court of Shandong Province issued a document in 2007, the year in the province will be widely implemented reconciliation in the administrative litigation, and strive to first instance administrative cases and withdrawal rate of more than 50% o in the official media reports, the original administrative withdrawal rate worries were swept away, replaced by the coordination processing experience introduction praise and praise.         In the guise of administrative coordination mechanism, coordination means retrofit. Adhere to the voluntary principle, legal, limited coordination processing, ban "to promote," withdrawal "to drag pressure and" opinion, was lost in the noise of a coordination. Apart from a few beautiful case, coordination can bring much protection rights, the effect of resolving administrative disputes, is suspicious. Statistics show that the Supreme Court, the plaintiff in the withdrawal of the case, the defendant to change administrative behavior after the withdrawal is always a minority, but also less trend (see Figure 3). In 2010 the first instance administrative cases of withdrawal rate of 44. 5%; while in cases of withdrawal, only 7.2% of the cases in the self revocation or change of administrative behavior in the case of the plaintiffs claim. That is to say, in the vast majority of cases of withdrawal, the defendant did not change the administrative behavior and withdrawal.

Figure three:

Through the case number and withdrawal rate fluctuation analysis, we can see, because of the lack of judicial independence and authority, judicial ability is limited, the court often refuse to accept, reject the prosecution and the mobilization of required withdrawal as a "senior judicial organs strict enforcement of the law" or "coordinated process", advocate of case number, withdrawal rate index of local court can play a certain effect, but often "press the gourd dipper float", to the overall change. No fundamental reforms in the judicial system of the administrative litigation cases, only "the survival in the crevice in dire straits, in the development of".

People look forward to, the administrative litigation system of administration according to law to play a bigger role in the regulation of the administrative power, protect the rights of citizens, to promote, this needs a perfect "administrative procedure law", need a more independent and strong judicial system.

From a long-term sense, to get out of the plight of administrative litigation, but also depends on a growth of civil society, depends on the democratic political sound.