The appointment and removal of personnel of case: the sacking belonging to the scope of accepting cases of administrative litigation

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  • / Author: Aaron Lewis

The sacking of belonging to the scope of administrative litigation 
Authors: Liu Desheng2007-02-27

　　[case]

Plaintiff: Wang * *.

Defendant: * * Economic Development Zone Management committee.

In 2004 March, Wang x x x x Village Economic Development Zone New River village election served as the Village Fifth Committee Deputy Director, a term of three years. In 2005 June, bureau of rural work under the * * Economic Development Zone Management Committee, the relevant provisions and requirements of the work of rural tax reform on the grounds, to research and report to the Management Committee of the Development Zone, make x agricultural (2005) Notice 46, decided to remove all administrative duties including King x × inside seven people as the.

Wang x x claims: in 2004 March the plaintiff by the villagers' election served as deputy director of New River village committee, a term of three years. Bureau of rural work is * * Economic Development Zone Management Committee for administrative coercive means, decided to remove the served as the deputy director of the village committee office, and dismissal not to its service, rural work office dismissal in violation of the provisions of the law, violated their legitimate rights and interests, which belongs to the invalid administrative act. Make the rural work belongs to the Bureau requested the court to revoke the * * Economic Development Zone Management Committee Office notice.

* * Economic Development Zone Management Committee said in reply: the administrative dismissal of Wang Engan is the implementation of the administrative organs of the state are not actionable mandatory administrative act; withdrawal of the village and group, reduction of village cadres is the inevitable requirement of administrative division adjustment; Wang x x to depose fact already knows, the illegal behavior tax evasion, is not suitable to serve as deputy director of the village committee, the court rejected the plaintiff's request for litigation request.

　Trial.

City People's court think, make rural work is * * Economic Development Zone Management Committee Office notice does not belong to the abstract administrative action, but belong to the specific administrative action. According to the "Regulations of the people's Republic of China Law of Villager Committee Organization", term of office of members of the villagers committee, except for the statutory reasons may not be replaced, removal. Bureau of rural work is * * Economic Development Zone Management Committee in the form of a document's decision to waive the king * * position, is not only a violation of the statutory procedures, and belongs to the ultra vires act without permission. In view of the salt agricultural (2005) No. 46 dismissal notice relates to Liu * * seven, and six other people except the king * * other than not to file the lawsuit, and the administrative action has been implemented, the new village committee has already generated, so the king * * decision cancellation request removal behavior. Accordingly, in accordance with "the people's Republic of China Law of Villager Committee Organization" the first paragraph of article eleventh, "the Supreme People's Court on the implementation of 'of the people's Republic of China Administrative Procedure Law' interpretation of several issues" in fifty-seventh of the second paragraph, sentence:

Confirmation is the * * Economic Development Zone Management Committee Rural Work Bureau in 2005 June by the agricultural (2005) No. 6 "notice" Liu * * and other comrades removed, remove the specific administrative act Wang * * all administrative duties of illegal.

After the first instance verdict, the plaintiff and the defendant did not appeal.

　　[comments]

This is a new type of administrative litigation cases. Similar to the case of administrative organs (mainly is the people's government at the township level) from the members of the villagers committee has occurred in many places, the court's acceptance and success on the court decision, not only in terms of the scope of accepting cases as a breakthrough, to the administrative organ, will play the role of warning. We provide a brief analysis on the following problems in the case of:

　　One, about the problems of justiciability of dismissal notice

(a) Mo belong to the specific administrative action.

Bureau of rural work to make the * * Economic Development Zone Management Committee Office notice belong to concrete administrative behavior, does not belong to the abstract administrative act. The so-called abstract administrative act, one refers to the administrative legislation, administrative act, administrative organs develop, publish administrative regulations, administrative rules and regulations; two is the administrative normative documents of administrative organs for non specified objects release can be applied repeatedly, the making of the administrative agency, issued a decision, administrative with general binding administrative behavior. According to the "administrative procedure law" article twelfth (two) the provisions of item, administrative legislation and non legislative abstract administrative behavior does not belong to administrative cases by the people's court case, make the rural work is * * Economic Development Zone Management Committee * agricultural (2005) administrative legislation and dismissal notice is not to formulate, publish administrative rules and regulations, No. 46, because the object notification is aimed at specific, and do not have the applicability, the abstract administrative act therefore also does not belong to the non legislation. In addition, the dismissal notice is not served directly to the plaintiff himself, but the plaintiff has evidence to prove that the notice of the existence of the king, * * and the notice with legal interest, therefore the notice belongs to the specific administrative action.

(two) removal notice does not belong to the internal administrative behavior.

According to the "administrative procedure law" article twelfth (three) requirement: the people's court shall not accept the citizen, legal person or other organization to make the administrative organs of the executive staff rewards and punishment, or decided to sue. "The Supreme People's Court on the implementation of 'of the people's Republic of China Administrative Procedure Law' interpretation of several issues" fourth of the "administrative procedure law" article twelfth (three) "the staff member of an administrative organ, rewards and punishment, or decided to" explanation, is refers to the administrative organ to make the administrative organs of civil rights the obligations of the decision. According to "explain" provisions, where the administrative organ on its staff rewards and punishments, appointment and removal, wages, welfare and other lifting internal personnel administration, belong to the non actionable behavior. Bureau of rural work to make the * * Economic Development Zone Management Committee Office notice, single literally, seems to belong to the non actionable internal behavior, in fact, because the dismissal notice outside the administrative legal relationship between the Bureau of rural work, the king * * and * * economic development zone management the committee is the relationship between the management and the management and administration of the rural work; Wang * * not * * Economic Development Zone Management Committee of civil servants, the dismissal notice involved with the rights and obligations of the king * * as an ordinary citizen's rights and obligations, rather than civil servants, unique. Therefore, removal of internal administrative act notice does not belong to the non actionable.

　　Two, about the legitimacy of the dismissal notice

The administrative behavior of the administrative organ shall have the authority basis, and should be the legal procedure. The * * Economic Development Zone Management Committee Rural Work Bureau to streamline village cadres behavior should be carried out in strict accordance with the provisions of the law. "The people's Republic of China Village Committee Organization Law" second stipulation: the villagers committee is the villagers self-management, self-education, self-service grass-roots mass self-government organizations, democratic election, democratic decision-making, democratic management, democratic supervision. Rule fourth: the people's governments of townships, nationality townships, the town of support and help, the villagers committees in their work, but shall not intervene in matters shall belong to the scope of autonomy of villagers. Eleventh the provisions of the second paragraph of the villagers' Committee: each term of three years, the election shall be held. Rule sixteenth: the village more than 1/5 villagers group has the right to vote, can require members to recall the villagers committee. According to the above provisions, the village committee is a grassroots autonomous organizations of a mass character, the relationship between Township, Town People's government and the villagers committee should be a guiding and being guided by the relationship; term of the members of the villagers committee, shall not be replaced, removal. The relationship between the accused the rural work department and New River village committee is to guide and be guided and non leadership with the leadership, even Wang x tax evasion, tax facts can be established, shall be subject to criminal investigation, also can according to the procedure to remove the served as the deputy director of the village committee office. Make the rural work of the bureau is * * Economic Development Zone Management Committee * agricultural (2005) No. 46 Mo illegal program and beyond the authority of the specific administrative act.

 

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