The implementation of various activities of people in social life, some are to achieve private interests, some of it is in order to realize the public interest. Civil, commercial behavior is to pursue private interests for the purpose, can be called a private act; administrative activities is different, it can only give the public interests and the implementation; administrative organs cannot carry out administrative activities in order to realize the agency's own interests, or on the contrary to the original intention of the establishment of it.

Treatment of administrative litigation essence is the judicial organ to the supervision of the administrative supervision, so this is how to grasp?

Source of administrative right of speaking, is the alienation of the rights of citizens, the administrative organ as a representative or agent is the unauthorized disposition.

Civil litigation has some common principles, policies and procedures and administrative litigation, there are also some unique different principles, policies and procedures.

(a) the principle of disposition

"Civil Procedure Law" the thirteenth stipulation: the parties shall have the right of disposing of their own civil rights and litigation rights within the limits prescribed by law. Rule ninth: the people's court shall carry out mediation, on a voluntary and lawful basis; if conciliation is unsuccessful, a judgment shall be made without delay. Thus, in the field of civil litigation, the parties may according to their substantive rights and procedural rights of their own disposition, but in violation of mandatory provisions of the law and damage the public interests of the society except.

"The provisions of the administrative procedure law": in order to ensure the correct, prompt handling of administrative cases by the people's court, the protection of citizens, legal persons and other organizations of the legitimate rights and interests, safeguarding and supervising the exercise of administrative powers, this law is enacted in accordance with the constitution. The act of eleventh and twelfth from two sides to determine the scope of accepting cases of administrative litigation, mentioned that citizens, legal persons and other organizations or administrative subject specific administrative action. In the field of administrative law, the administrative subject's duty is to exercise their functions and powers according to law. Legal administrative principle is the basic principle of administrative subject. Legal administrative principle includes the following aspects: first, in the formulation of normative documents, in accordance with the law can only be defined by law, the administrative organ unless authorized, or not to make any provisions; second, in the absence of legislative documents under the provisions of the administrative organs shall not make, citizens, legal persons and other organizations of the rights obligations; third, any file, any decision made by administrative organs make must be consistent with the provisions of existing laws, shall not contravene the law; fourth, the authority, the administrative organ shall strictly follow the statutory procedures, the statutory scope; finally, obligations and responsibilities for the provisions of the law, the administrative organ shall actively fulfill or perform. The basic principles of legal administrative principle as the behaviour of the administrative main body, is of course precludes the administrative punishment in the field of administrative litigation principle.

The principle of action in the field of administrative litigation and civil litigation situation completely different. Because the administrative lawsuit and civil lawsuit follows different principle, so that essentially belongs to the civil litigation, the parties concerned may exercise the powers, but in administrative proceedings, the administrative subject is the unauthorized entity right. So both administrative and civil or administrative litigation with incidental civil action, on one hand we can not require the agency to make concessions to the specific administrative action made to resolve the dispute, is obtained, on the other hand, nor to the administrative organ has made a decision to limit it when the civil dispute part of the right of disposition.

(two) the mediation and counterclaim

"Civil Procedure Law" the ninth stipulation: the people's court shall carry out mediation, on a voluntary and lawful basis; if conciliation is unsuccessful, a judgment shall be made without delay. Rule eighty-fifth: the people's court, the parties on a voluntary basis, based on clear facts, to distinguish between right and wrong, mediation. Rule eighty-eighth: the agreement reached through mediation, must be voluntary, not force. The content of the mediation agreement may not violate the law. Other provisions of the civil procedure law eighth chapter of specific provisions on how to apply conciliation in civil litigation. From the provisions of the civil procedure law, the people's court in civil litigation shall follow the principle of voluntary, legal.

"Civil Procedure Law" the fifty-second stipulation: the plaintiff may waive or modify claims. The defendant may admit or refute the claim, have the right to file a counterclaim. Rule 126th: the plaintiff claims to increase, the defendant files a counterclaim, the third party claims related to the case litigation request, may adjudicate. "Several provisions of the Supreme People's Court on evidence in civil litigation"The provisions of the third paragraph of the thirty-fourth: increase, modify the claim or counterclaim, should put in evidence before the expiration of the term. According to the provisions of the civil procedure law and relevant laws, in civil proceedings the defendant to file a counterclaim, shall comply with the following conditions: first, the plaintiff can only counter is the appeal of the defendant; second, the people's court in charge of counterclaim shall be accepted by the people's court, only to the appeal of the proposed. Third, the defendant counterclaim shall be handled by the people's court litigation, within the time limit for adducing evidence. Fourth, the counterclaim and the appeal must have implications, either with a fact based, or relationship with a law based, or based on some kind of rights and obligations.

Due to the administrative subject to exercise the powers of all citizens, so its not punishment, thus in administrative proceedings, administrative proceedings reconciliation cannot and administrative relative person, the people's court shall have no mediation. "Administrative procedure law" article fiftieth to be clear, this stipulation: the people's Court concerning the trial of administrative cases, mediation is not applicable. At the same time, the administrative litigation is the main way of supervision of judicial power to the administrative power, does not examine the behavior and fault of the administrative relative person, so administrative litigation in administrative subject can't filed a counterclaim to the administrative relative person. Therefore, whether the main or administrative litigation incidental, cannot apply conciliation and counterclaim, the civil part, should the court presided over the mediation, the defendant has the right in accordance with the relevant provisions of the civil procedure law puts forward countercharge.

(three) the burden of proof

"Civil Procedure Law" the sixty-fourth stipulation: the parties to submit their ideas, have the responsibility to provide evidence. The parties and their agents ad litem due to objective reasons not to collect evidence, or the people's court that the evidence necessary for the trial of the case, the people's court shall investigate and collect. "Several provisions of the Supreme People's Court on evidence in civil litigation"The first rule: the plaintiff to the people's court or the defendant files a counterclaim, shall be accompanied by a corresponding evidence consistent with the conditions of prosecution. Rule second: the basis for his claim facts or rebuts the facts have the responsibility to provide evidence to prove the. There is no evidence or the evidence is not sufficient to prove the claim, by the proof should bear the adverse consequences. Visible, the general civil procedure to implement "principle who advocates, who bears the burden of proof".

"Administrative procedure law" the thirty-second regulation: the accused has the burden of proof for the specific administrative act made, shall provide the specific administrative action evidence and regulatory documents on the basis of. Rule thirty-third: in the course of legal proceedings, the defendant shall not collect evidence from the plaintiff and witnesses. "Provisions of the Supreme People's Court on several issues of administrative procedure evidence"The first rule: according to the provisions of the administrative procedure law, article thirty-second and article forty-third, the defendant shall bear the burden of proof for the specific administrative act made, should be in receipt of the copy of the complaint within ten days from the date of offer, according to all the evidence to make specific administrative acts being sued and normative documents on the basis of. The defendant does not provide or to meet the time limit for providing evidence without justifiable reasons, as the specific administrative act is not the corresponding evidence. "The provisions of article fourth rules of evidence:" citizens, legal persons or other organizations to the people's court, the corresponding material evidence in accordance with the conditions of prosecution shall be provided. Know, that the main responsibility of defendants in administrative litigation, the plaintiff to prove the corresponding responsibility. The burden of proof the plaintiff includes damage preliminary proof responsibility, the burden of proof of the prosecution, the burden of proof in new ideas and issues in part of the program of burden of proof.

(four) trial procedure and organization

"Civil Procedure Law" the 142nd stipulation: trying a simple civil case facts are clear, the relationship between the rights and obligations are clear, the controversy is the basic people's court and the tribunals dispatched by it, the provisions of this chapter shall apply. "Civil Procedure Law" the thirteenth chapter to the people's court apply summary procedure provisions. The people's courts at all levels to guide the correct use of the simple procedure, the Supreme People's court in 2003Years9Month10DayIntroduced "Several provisions of the Supreme People's Court on the application of summary procedures in the trial of civil cases", the" Civil Procedure Law "shall be refined. "Civil Procedure Law" the fortieth stipulation: the people's Court of first instance shall try civil cases by a judge, jury, composed of the collegial panel or by a collegial panel of judges. Numbers of members of a collegial bench shall be. Application of simple procedure in civil cases, trial by a single judge alone.

"Administrative procedure law" third paragraph second: the people's courts shall set up administrative court, the trial of administrative cases. The sixth article of the law: the people's courts shall, in accordance with the law practices the system of collegiate bench, avoidance, and apply the system of public trial. Rule forty-sixth: the people's courts shall, by a collegial panel of judges, or by a judge, jury collegiate bench. The members of a collegial panel shall be more than three people, the singular. This means that the administrative litigation cases by the administrative tribunal of a people's court within the collegiate bench trial. The simple procedure, no provision of the administrative litigation law "". Therefore, the administrative procedure, the uniform application of the ordinary procedure. For people with hearing, cross case should be heard by a judicial organization. Therefore, the trial organization should be unified into a collegial panel, part of the civil trial should also be to hear to ordinary procedure, no longer apply summary procedure.

(five) the trial period

"Civil Procedure Law" the 135th stipulation: the people's court shall apply the ordinary procedure case on record, shall be concluded within six months. If extension is needed, approved by the president of the court, can be extended to six months; also need to extend, be approved by the people's court at a higher level. The law 146th stipulation: simple procedure, in the case shall be concluded within three months. That is to say in general, people should be the date of initiation6Months to settle the case.

"Administrative procedure law" fifty-seventh stipulation: the people's court shall in the case within three months from the date the judgment of first instance. If extension is needed, approved by a higher people's court, the higher people's Court of first instance cases need to be extended, approved by the Supreme People's court. Compared with the civil litigation, administrative litigation should be in3Months to settle, the trial period shorter.

The provisions of the administrative procedure law shall be3Months, the provisions of the Civil Procedure Law of the common procedures shall be6Month. The author thinks, the trial period of administrative litigation with incidental civil action shall be3Month trial period, administrative litigation with incidental civil action for the general3Months, if3Months cannot be concluded, administrative litigation with incidental part should also be in the3Month concluded, and go ahead of the rest of judgment.

(six) the judgment and appeal review principle

First, the judgment in different ways. The judgment of administrative litigation and civil litigation in the different. "Administrative procedure law" fifty-fourth stipulation: the people's court after the trial, according to different circumstances, respectively make the following judgments:

(a) the specific administrative act irrefutable evidence, the applicable law, regulations, compliance with the statutory procedures, maintenance of judgment.

(two) the specific administrative act in any of the following circumstances, the decision to withdraw or partially withdraw, and may re sentence the defendant to the specific administrative act:

1Inadequacy of essential evidence;

2Applicable laws, regulations and the wrong;

3Violation of legal procedures;

4Beyond the authority of the;

⒌Breach of privilege.

(three) the defendant fails to perform or delays performing statutory duties, the judgement of the performance in a certain period of time.

(four) administrative penalty which is obviously unfair, can decide the change.

    According to the stipulations of law, administrative litigation judgment can be divided into specific maintenance verdict, dismissed the judgment, revocation decision, execution of judgment, judgement of alteration, confirmation judgment, judgment7Kind of. The maintenance decision, judgment in civil action is no form of judgment, and revocation decision, alteration of judgment and civil litigation is different.

Second, administrative litigation and civil litigation appeal trial principle is different. "Civil Procedure Law" the 151st stipulation: the people's Court of second instance shall examine the appeal of the relevant facts and the application of the law. "Interpretation of the Supreme People's Court on some problems in the implementation of 'of the people's Republic of China Administrative Procedure Law'"The sixty-seventh stipulation: the people's Court of second instance trial of a case on appeal, the people's court shall be the referee and the specific administrative act is legal to conduct a comprehensive review. Identification of the trial court fact controversial, or the people's Court of second instance that the people's Court of facts are unclear, the people's Court of second instance shall open the court session. Visible in the appellate procedure, because the law principle to follow different and review the different objects, the object of civil litigation by the court of appeals review appeal scope limit, conducted a comprehensive review the legality of administrative litigation is a specific administrative act of the trial court judges and defendants, a manifestation of this is a legitimate administrative principle in administrative litigation.

(seven) the nature of the responsibility

In civil proceedings, the establishment of tort liability in the occasion, the defendant usually have to bear the liability for damages. In the field of contract, a party for its breach of contract to the other losses, should bear the liability for breach of contract by the other party, including continue to perform, pay breach of contract damages or compensation for losses. In nature, the parties bear civil liability.

"Administrative procedure law" sixty-seventh provides that: citizens, legal persons or other organizations infringe upon the legitimate rights and interests of the damage caused by a specific administrative act of an administrative organ or the personnel of an administrative organ, have the right to claim compensation. Rule sixty-eighth: a specific administrative act of an administrative organ or the personnel of an administrative organ infringes the citizen, legal person or other organization's legitimate rights and interests of damage, the administrative organ or the administrative organ staff of administrative organs responsible for compensation. Sixty-ninth rules: compensation costs, expenses from all levels of finances. The people's governments at various levels may order the administrative organs responsible for part or all of the damages. The specific measures shall be formulated by the state council. The administrative body for exercising authority to the administrative relative causes damage, the administrative relative person administrative subject can ask to make the behavior of the assumed responsibility for damages. The responsibility from the nature of state liability, the relevant provisions of "State Compensation Law".

(eight) implementing agencies

"Civil Procedure Law" provisions of article 207th:A legally effective civil judgment, ruling, and criminal judgments, rulings of the property in part, shall be executed by the people's Court of first instance. Other legal documents of the law enforced by a people's court, shall be enforced by the people's domicile or where the property where the people's court for enforcement. "Provisions of the Supreme People's Court on a number of issues people's courts (for Trial Implementation)"Article1Rules: the people's court according to the need, according to the provisions of relevant laws, the establishment of executive agencies, specifically responsible for the implementation of the work. According to the law above knowable, in carrying out the civil case, the people's court according to the law enforcement agencies have set up to have the right to carry out case.

"Administrative procedure law" sixty-fifth paragraph second: citizen, legal person or other organization refuses to perform the judgment, ruling, the administrative organ may apply to a people's Court of first instance for compulsory execution, or law enforcement. The act of sixty-sixth provides that: citizens, legal persons or other organizations for the specific administrative act is not filed within the statutory period and is not complied with, the administrative organ may apply to a people's court for compulsory execution, or law enforcement. "Interpretation of the Supreme People's Court on some problems in the implementation of 'of the people's Republic of China Administrative Procedure Law'"The eighty-seventh regulation: legal, regulations do not authorize the administrative organs to enforce the right, the administrative organ may apply to the people's court for compulsory execution, the people's court shall accept the case according to law. Legal, regulations can be enforced by administrative organs in accordance with the law, or apply to the people's court for compulsory enforcement, the administrative organ may apply to the people's court for compulsory execution, the people's court may accept the case according to law. Analysis of the legal provisions, we can find that has executive power mechanism in administrative litigation is not limited to the people's court, including law enforcement agencies have.

Some differences in the administrative litigation and civil litigation, we can find that the nature of the cause of these differences is the fundamental point of administrative litigation and civil litigation is different. Administrative litigation disputes is the representative of the interests of the general public, and represent the majority of the public decision and not of itself, but the agent of administrative subject. So, in order to prevent the administrative subject variation in the representative of the public interest and seek their own and personal interests, administrative litigation request to the administrative subject particularly strict, does not allow its disposition rights, also does not allow its and reconciliation in the administrative relative person. On the other hand, because the administrative subject is the representative of the public interest, which has a strong administrative resources, in order to prevent the imbalance of administrative litigation rights and obligations of both sides, "administrative procedure law" in the burden of proof and trial period and so on to the administrative relative person of tilt.