The scope of accepting cases of administrative litigation cases and legal standards

Published: 2010-12-15 08:57:07

    One, the scope of administrative litigation

    (a) the people's court shall accept the case

    The people's court accepts the citizens, legal persons and other organizations may initiate litigation to the following specific action:

    Detention, fine, rescission of a license or permit, order to suspend production or business, confiscation of property of 1;

    The 2 seal, restricting freedom of the person or property of the seizure, freezing against compulsory administrative measures;

    3 think autonomy administrative organs infringe the law management;

    4 that meet the statutory requirements to apply for the administrative organ to issue a permit or license, the administrative organ has refused to issue or not to reply;

    5 to apply for the administrative organ to protect personal rights, property rights, legal responsibility, administrative organ refuses to perform or fails to respond to the;

    6 thought that the administration did not grant pension according to law;

    7 think that the administrative organs in violation of requirements to fulfill obligations;

    8 think that the administrative organ infringe upon their personal rights, property rights.

    (two). The people's court shall not accept the

    Citizens, legal persons or other organizations for the following actions filed a lawsuit against, not belonging to the administrative case by the people's court range:

    1 national defense, diplomatic behavior;

    2 administrative regulations, rules or making of the administrative agency, released universally binding decisions, orders;

    3 administrative organs and staff members of an administrative organ shall be decided, etc.;

    4 the law by the specific administrative acts of the final decision;

    The implementation of the 5 public security, national security organs in accordance with the explicit authorization of the criminal procedure law behavior;

    The act of mediation and legal provisions of the 6 act;

    7 non mandatory administrative guidance actions;

    8 the parties dismissed on administrative action by double disposal action appeal;

    9 do not have a real impact on the right of the citizen, legal person or other organization obligation.

    Standard for two, administrative litigation

    (a) prosecution condition

    1 general conditions

    General conditions refers to whether bring what kind of litigation, no matter what the claim put forward, should have the conditions. Administrative litigation should meet the following conditions: (1) the plaintiff is that citizens, legal persons or other organizations to the specific administrative acts infringe upon their lawful rights and interests; (2) a definite defendant; (3) a specific claim and the facts; (4) belongs to the people, the scope of the court and be subject to the jurisdiction of the people's action the court.

    The 2 time

    Time is a limitation, namely the effective period of the exercise of the right of appeal. Administrative proceedings deadline is divided into general term and special period of two class. The general term refers to the provisions of the administrative procedure law, applicable to other laws, and regulations have not been clearly defined prosecution deadline. The special period is a recognition of the administrative litigation law, other laws, and regulations of the prosecution deadline. The general term and special period contains two kinds of situations: after reconsideration and litigation direct prosecution deadline. Regulations of the general term, applicable to other laws, laws and regulations not prosecution deadline situation. When the specific laws, regulations stipulate that special period party prosecution deadline, the general term that is not applicable. When sue, must according to the provisions of the laws, regulations shall exercise the right to appeal. According to the law of our country, the general term direct prosecution is to know months administrative organ takes a specific administrative act, the general term; reconsideration is within 15 days as of the date of receipt of the reconsideration decision. However, the administrative organ that has made the specific administrative act, did not inform the citizen, legal person or other organization litigation or the prosecution, prosecution deadline from the citizen, legal person or other organization knows or should know from the calculation of the date of the right of appeal or the prosecution, but it knows or ought to know the content of the specific administrative act date shall not more than 2 years.

    3 the prosecution procedure conditions

    To deal with the relationship between administrative reconsideration and administrative litigation, the parties choose the remedial method of general principles, administrative reconsideration is exceptional, especially the provisions of the laws, regulations and need. At the same time, judicial final settlement is the general principle, and the administrative reconsideration decision is the outcome of the exception.

    (two) the rules to determine the plaintiff of administrative litigation

    1 citizens because of the restriction of personal freedom and not a lawsuit, his near relatives may according to the oral or written authorization in the name of the civil litigation.

    2 and the specific administrative act is legal interest of citizens, legal persons or other organizations of the act, it may bring an administrative lawsuit according to law.

    3 in any of the following circumstances, citizens, legal persons or other organizations may bring an administrative lawsuit according to law:

    (1) the specific administrative act the relates to neighboring rights or fair competition right;

    (2) and administrative reconsideration decision is the legal relationship or the review process is appended for third people;

    (3) requires agencies to investigate the legal liability of the offender in accordance with the law;

    (4) with legal interest relations with the specific administrative act is revoked or changed.

    The 4 partnerships bring a lawsuit to the people's court, shall be approved and registered trade name of the plaintiff, the partners executing the partnership enterprise affairs as the litigation representative lawsuit; other partnership organizations, partner Co plaintiffs. Other organizations do not have legal personality to the people's court, the main person in charge of the organization as a litigation representative; no responsible person, can be elected by the responsible for the litigation representative. In the more than 5 people, to 1 - 5 litigation representatives to participate in the proceedings; not selected within the specified time limit, the people's court may in its discretion.

    5 joint ventures, Sino foreign joint venture or cooperation enterprises, joint ventures, joint venture partners, joint venture, joint ventures, cooperative enterprises that the rights and interests of a party or his legal rights and interests against the specific administrative acts, may initiate an action in its own name.

    May 6 rural land contract and land use rights to dispose of their use of rural collective owned land on the acts of the executive authorities, may file an action in its own name.

    7 non state-owned enterprises by administrative organs, revocation, cancellation of merger, merger, division or forced sale, change corporate affiliation, the enterprise or its legal representative may file a lawsuit.

    8 joint-stock enterprises of the general meeting of shareholders, shareholders, the board of directors that violations of the specific administrative act of an administrative organ business autonomy, may bring a lawsuit in the name of the enterprise.

    Determination of 9 other special circumstances the plaintiff:

    (1) have the right to file an administrative lawsuit citizens at the time of death, his near relatives may bring the suit. "Close relatives" including spouses, parents, children, brothers and sisters, grandparents, grandparents, grandchildren, Sun Zinv and other support, support relatives.

    (2) have the right to bring a suit of legal person or other organization is terminated, the legal person or other organization that succeeds to its rights may bring the suit.

    (three) the defendant in administrative litigation rules

    1 direct prosecution, to make the specific administrative act shall be the defendant.

    2 after review and reconsideration organ to change the original specific administrative act, the reconsideration organ shall be the defendant.

    3 after reconsideration, but the reconsideration organ to maintain the original specific administrative act, the administrative organ shall be the defendant behavior.

    4 two or more administrative organs to make a specific administrative act, as a joint defendant.

    To authorize the 5 laws and regulations, organization of the specific administrative act, the organization is the defendant.

    The specific administrative act of 6 commissioned by the administrative organizations, the entrusting organ shall be the defendant.

    7 administrative organs were removed, continue to exercise its functions and powers by the administrative organs for the defendant.

    Determination of 8 other special circumstances the defendant.

    (1) if a party refuses to accept a specific administrative act approved by the superior administrative organ, bring a lawsuit to the people's court, should be signed in the foreign legal instruments on the organ for the defendant.

    (2) the administrative organ to administrative functions but does not have the independent ability to bear the legal liability and the formation mechanism, in its own name a specific administrative act, the parties accept the lawsuit, should be to set up the mechanism of the administrative authority for the defendant; administrative department or agency in the absence of laws and regulations or the regulations authorize the case, in its own name a specific administrative act, the parties accept the lawsuit, the administrative organ shall be the defendant; laws, regulations or rules of the administrative organ authorized to exercise the functions and powers of internal organs, agencies or other organizations, the implementation of administrative behavior beyond the authorized scope, if a party refuses to accept the administrative proceedings, shall to implement the behavior, institution or organization for the defendant.

    (3) the administrative organ in the absence of laws, regulations or rules and regulations, exercise the functions and powers authorized its internal organization, agency or any other organization, it shall be regarded as principal. If a party refuses to accept the lawsuit, to the administrative organ for the defendant.

    (4) the reconsideration organ does not make a reconsideration decision within the statutory time limit, the parties to the original specific administrative action shall be filed a lawsuit against, in order to make the original specific administrative act as the defendant; where the reconsideration organ is not as filed a lawsuit against the, shall be based on the reconsideration organ for the defendant