The second chapter        The system of administrative litigation function

From the "administrative procedure law" enacted before and after today, about the administrative proceedings system function has been a lot of discussion. However, the existing literature is mostly from the front to the narrative, including the romantic vision; and for the system of administrative litigation limitation (not necessarily defects), are seldom discussed. At the same time, the existing narrative mostly conceptual, very little attention to restrict administrative litigation specific system brought about by the. The court can not try to do everything all by oneself, of course, not a panacea in administrative litigation. If you do not see the administrative litigation system inherent limitations blindly asking the court to "end the case", then, some of the pursuit of administrative dispute resolution measures could in turn dampens the function of the system. On the contrary, if not to the administrative litigation on administrative supervision and legal development possible meaning, just to think of it as a "trial", then, public interest litigation but for the administrative organ and the court "trouble", is no longer necessary. In the administrative litigation system is fully implemented 20 years later, perhaps people should look at it quietly in the practical effect, rational, concrete measure of its inherent limitations and potential significance.

The system of administrative litigation has various functions, the function description has different perspective and discourse. Study on the litigation system, scholars, usually the litigation system functions are classified into dispute settlement, social control, policy formation etc.. Three aspects of this chapter from the dispute resolution, administrative supervision and legal development, respectively, to review. Dispute resolution and the function of administrative supervision is the "administrative procedure law", the function of law is derived from the development of judicial practice. "Administrative procedure law" first instructions, the functions of the system, namely "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". "The main objective correct, timely hearing administrative cases" is the settlement of administrative disputes, and the main effect of basic premise of solving the administrative dispute is the right remedy; right without relief, but also very difficult to resolve the dispute. So, right relief dispute resolution is to a large extent coincide.

The function of administrative lawsuit proposition is multifaceted, function and should include actual function, legal function. The discussion in this chapter is the norm, that it should have the function and may have potential in the current legal framework. Discussion this level gives us a "legal" struggle through the look, not immersed in the embarrassing reality; even, it also gives us some improvements to the existing system of imagination, let us not be confined to the existing provisions. However, the administrative litigation system is embedded in the whole political and legal framework. Discussion of "ought to be" to have the practical significance, rather than "Utopia" of the beautiful fantasy, it cannot do without reference to the existing conditions, not qualified from the existing legal framework. These limits are mainly reflected in two aspects. First of all, a part of the administrative litigation system is the legal system, and the other is the dispute settlement mechanism, administrative supervision mechanism, legislation system and other systems. Therefore, in the discussion need to treat other related systems to exist, need to consider the integration of various related systems. Secondly, in the foreseeable future, the existence of the system of administrative litigation Chinese still unable to overcome a weakness. Status of hospital in politics is low, the legal power is limited: no right of review in a normative document, have no power of judicial review of laws and regulations, but also did not form a stable and reliable to follow the precedent system. Therefore, we on the function of administrative litigation system imagination had to temporarily lower its sights.

                  The first section In settling disputes

The current Chinese are in the period of prominent economic and social transition period, the social contradiction, the administrative dispute upward trend, relates to the rural land rights, land acquisition, demolition of urban housing, her social security, environmental pollution, inductrial injury, safety and other disputes increase, need to be fair, timely solution. The central government also realized the seriousness of the situation, specially issued requirements prevent and resolve administrative disputes, administrative dispute settlement mechanism.

On the case, when citizens dissatisfied with an administrative act, he faces a different choice in law: the first, he can choose to obey, whether because of fear of trouble or for "people do not fight with the officer" consideration; second, he can pass through the administrative reconsideration or litigation to challenge the administrative behavior, thus forming a legal disputes; third, he neither subject nor seek relief, but despised, in defiance of the administrative act. There are many defiant, specifically, he may refuse to fulfill the obligations set as administrative behavior, such as not to pay a fine; he may set a refusal to comply with administrative act not as obligation, such as food, regardless of an administrative organ refuses to quarantine and according to sell pork; he may also hinder the implementation of administrative behavior, such as pull the police do not let it take. But citizens direct defiance might still for "obstructing public duties" and face administrative punishment or directly forced, finally still may lead to administrative disputes.  

A current administrative dispute settlement system

The citizen, legal person or other organization and administrative disputes, the solution is the variety of. In | administrative process, the party has objection to the administrative behavior to make, can plead. The administrative decision is made, the administrative organ to recognize the error, can be corrected, change or cancel. The party may also apply for administrative reconsideration or bring an administrative lawsuit. Administrative dispute after administrative reconsideration or bring an administrative lawsuit to obtain the final confirmation, the parties are still not satisfied, can also get relief through letters and visits. Different approaches to constitute administrative dispute resolution system.

In the contemporary China, administrative reconsideration and the administrative litigation petition is outside the two main dispute resolution channels.

(a) the administrative reconsideration

The administrative reconsideration is internal administrative system to resolve administrative disputes of a legal system. Citizens, legal persons or other organizations for the application for reconsideration, administrative reconsideration has the property of administrative remedy; and for the respondent administrative authority, it has the nature of administrative supervision. But it's the most important and direct function or settlement of administrative disputes.

The system of administrative reconsideration has a long history in China. In twentieth Century 50, a prototype system of administrative reconsideration. From the beginning of the twentieth Century 80's legal provisions, Chinese gradually in certain circumstances the parties may apply for administrative reconsideration. But the administrative reconsideration system was fully established, is established in the administrative litigation system at the same time, as a supporting system of administrative litigation system is established. In 1999 the "administrative review law" replaced the original "Regulations on administrative reconsideration".

Under the current system, the citizen refuses to accept the specific administrative acts made, can in principle to the administrative organ at the next higher level of the administrative reconsideration application spectrum. Which refuses to accept the administrative levels at and above the county level government departments behavior, can in principle to the Department of the government at the corresponding level to apply for administrative reconsideration, it may apply to the competent department at a higher level for administrative reconsideration. The reconsideration organ in written examination on the relevant materials, can also inquire the relevant organizations and personnel, to listen to the opinions of the parties. On this basis, the reconsideration organ were made to maintain the specific administrative act, revocation, modification or to confirm the specific administrative act as illegal, the responsibility is an administrative organ to perform its statutory responsibility or compensation within a certain period of time decision. Is an administrative organ shall obey and carry out the administrative reconsideration decision; but if the applicant is not satisfied with the decision of administrative reconsideration, it may bring a lawsuit to the court usually.

Theoretically speaking, the administrative reconsideration procedures because of its convenience and the reconsideration organ authority, should be able to handle most of the administrative dispute, become the main channel to solve administrative disputes. But from a practical point of view of the administrative reconsideration system effect is not ideal. First of all, the number of cases handled by the administrative organ for reconsideration, the administrative reconsideration law "after the implementation of" hovers at 70000. On average, a population of 500000 common sizes of county, have only 30 pieces of reconsideration cases every year. This figure is even lower than the court administrative proceedings of the admissibility of the case, not to speak of with turbulent waves petition cases were compared. But some legal, regulations must be after the reconsideration of administrative litigation, administrative reconsideration cases will be less number. Secondly, the administrative reconsideration decision support (including the applicant revoked, changed or confirm the illegal administrative acts and the order of execution) ratio, lower. But from the "administrative reconsideration law enforcement" in front of nearly 30% all the way down, to 9.1% in 2009. Accordingly, the reconsideration decision support administrative organs (the applicant), from 52% in 2000 to rise year by year, reaching 65.9% by 2009. Administrative reconsideration application low success rate, which in turn dampens the citizens, legal persons and other organizations to confidence in the administrative reconsideration system, hinder them to seek positive relief through administrative reconsideration.

Figure 1

Figure 4 the number of the application for administrative reconsideration, accepted and concluded

 

Fig 5 years concluded the administrative reconsideration case

   Today, administrative reconsideration system is facing reform. The aim of the reform is to establish a fair, effective review system. May involve a series of problems: what matters (including some matters can not be an administrative lawsuit) can enter the administrative reconsideration procedure? In scope, if a party refuses to accept the administrative act, may apply for administrative reconsideration? The administrative reconsideration procedure should be how to protect the procedural rights, without compromising the administrative reconsideration system efficient, convenient? Refuses to accept the decision on administrative reconsideration, it shall take who as the defendant (the reconsideration organ or the administrative organ) as the defendant? The court should respect the machine meeting to decide to what extent?

(two) the petition

The petition system has a long history in the Chinese. Some people see it and parliamentary ombudsman system of some countries together, more and more people from Chinese ancient societies may direct the hearing "the dengwen drum" and "Beijing controlled" find its shadow. The petition system since the government hospital in 1951 "about handling people's letters and receive people's work of the decision" was formally established, is considered to be an important channel for empathy, ties with the masses. Since then, people's governments above the county are equipped with the petition reception mechanism. In 2000, the original office, the State Office of the Complaints Bureau was renamed the State Bureau for letters and calls, the general office of the State Council is responsible for managing the work of the administrative institutions, approved by the general office of the CPC Central Committee, the general office of the State Council guidance. In 1995 the State Council, in 2005 two "petition regulations" promulgated, the petition work as the norm.

 2005 "petition regulations" in the smooth handling channels, maintain the order of purpose, established the "apanage management, classification responsible, who is in charge, who is responsible" principle, the establishment of the public, the principles of convenience, perfect to do the letter visits, procedures, norms and strengthen supervision work. "Petition regulations" provisions may apply to the relevant administrative organs put letters matters, way of letters. For example, "complainant choosing to put forward the petition shall present shall have the right to treatment at the same level or the Department; the petitions, has been accepted or are handled within the time limit, the people in accepting, department for higher authorities to put the same letter visit provisions, the superior organ shall not accept." "Complainant choosing to present petitions, it shall go to the reception place established or designated by the organ concerned; many people used to visit this common form petitions, representatives should be selected, the number of Representatives shall not exceed 5." "Petition regulations" also requires the complainant to maintain social order and the order consciously in the process, and the provisions of the order to disrupt the petition shall be the responsibility of. Although in the law, the broadly defined as "the citizen, legal person or other organization through letters, e-mail, fax, phone calls, visits and other forms, to reflect the situation, the people's government at or above the county level people's government departments, suggestions, opinions or complaints request" activities, but in fact, the petition is to complaints to the relevant matters of unfair, and visit is the most effect way. "Open the door to visit by leaders at all levels" to encourage, the high number of letters. Since 1995, the number of letters for 12 consecutive years of rising.2000 years after "petition peak" situation. In 2004, above the county Party and government agencies to accept the petition letters and visits 13736000 (people), compared to 2003 increased by 13.4%; State Bureau for letters and calls received letters and visits 605000 (people), of which the visiting times were increased by 58.4% and 52.9%: letters to focus on urban housing demolition, the expropriation of rural land, enterprise restructuring, labor service, the village agricultural fields, of which a considerable part of the treated cases involving court. According to the State Bureau for letters and calls Zhou Zhanshun, estimated in 2003 that, in the current petition especially collective complaints reflect problems, 80% above is reflected in the process of reform and development problems, more than 80% sense or should be a certain practical difficulties and problem solving, above 80% is the basic level should solve can also solve the problem of.

Even so, the road is long and hard, petition processing legal effect is limited, the actual effect of the petition to resolve disputes is weak. According to the survey by scholars such as Yu Jianrong a few years ago, the probability to solve problems through petition way only 2/1000. When an original letter of bureau director also joined the ranks of the petition, he found that this set of system useless and cold: "he expected the departments concerned to sit down and really be in a calm mood to listen to our voice, place oneself in others'position to consider our difficulties", but even that didn't have a chance. And when some local governments in the quantity statistics and reporting system under pressure, for "stability" and have "interceptors", even to the petitioners to detention, reeducation through labor and sentenced, the petition system has deviated from its original intention to a great extent. Its practical functions mainly as a symbol of his grievances and officials, maintained the final confidence in the legitimacy of the government.

The mechanism reform abolition or petition system caused the academic and the authorities give tit for tat discussion. Critics say the existence of petition system leads people to believe the right but not the letter of the law, looking for leadership and not to the court, is the rule of law order destruction. Advocates of "reform" of the letters and visits system also realized, large-scale letters warning of social contradiction complex and sharp, also shows that the formal dispute resolution mechanism of failure. Especially, when wearing the robes of judges also joined the ranks of the petition, formal dispute resolution mechanism has been ashamed. From the country under the rule of law and the concept of dispute settlement system of letters and visits, obviously not a dispute resolution normal, but should not be taken as the main channels for the settlement of disputes.

   (three) the integration of the administrative dispute settlement mechanism

   Administrative litigation system is not based on the court than on the administrative organ gaoming. Existing administrative litigation system is the reason for the dispute, compared with other existing solutions, it can at least in theory just settlement of administrative disputes. This possibility is to provide a series of features by the administrative litigation in institutions, personnel, procedures and entities. First of all, it is an ad hoc Organization (people's court) and professionals (judges) to judge. The court was organized by the "constitution" and "the people's court organization law", the judge qualifications by the "judge law" provisions, it has high stability. Secondly, it embodies a series of relatively strict procedural characteristics, including don't tell, collegiate, a public hearing, the trial level, the trial period and adjudicative document format. Third, it reflects the rule in question from the entity, the conditions for acceptance, examination standard, relief to legal provisions are relatively clear, reduce the arbitrariness.  Because of these features in administrative litigation, which is regarded as the "last line of defense to resolve administrative dispute".

Under normal circumstances, the parties to the administrative reconsideration results disaffected, can still bring an administrative lawsuit, seeking judicial relief. In the court, the parties can not be on the same matter to the administrative organ for reconsideration. Even if the parties are not satisfied with the court final judgement, the petition, also should be decided by the court according to the administrative procedure law "provisions" of the program to decide whether to retrial. But in practice, the final judicial decision has not been fully established. Although the court to realize judicial final important, but various conflicting instructions to impact the final judicial decision.

The role of administrative litigation to resolve administrative disputes, administrative reconsideration, and shall be with other dispute solution mechanism connected by. The administrative reconsideration due to the convenient, efficient, should become the main channel for the settlement of administrative disputes, to accept and destroy most of administrative disputes. The unity of the administrative litigation more emphasis on the application of procedural justice and law, the main security can be used as a dispute resolution. The appeal petition as a special relief channel, should be complementary. Roughly speaking, a reasonable administrative dispute settlement mechanism, the administrative reconsideration, administrative litigation of 10000000 pieces of 1000000 pieces, 10000 pieces or fewer complaints. The present situation is just the opposite, the administrative reconsideration and the administrative litigation of the two formal dispute solutions faced "system failure", the popular. This is completely "the tail wagging the dog".

The Supreme Court has recognized, litigation channel is not smooth, will inevitably lead to increased petitions, aggravation of irrational behavior, will seriously affect social harmony and stability, weaken the people's court administrative trial "for overall service, as the functions of people's justice". Therefore, the Supreme Court, any actionable items of administrative litigation law, shall not be excluded; "administrative procedure law" is not clearly defined but is authorized legislation, regulations and strictly abide by the law and the judicial interpretation; not explicitly exclude specific administrative acts, it shall belong to the people's court scope. Not only to protect the citizens, legal persons and other organizations of the personal rights and property rights, also need to conform to the right safeguard, in accordance with the law to protect the legal, regulations may file a lawsuit with the personal rights, property rights are closely related to other economic, social rights. However, faced with the system of limitation of administrative litigation. Only by the Supreme Court issued a document is not enough. In order to make the administrative reconsideration and the administrative litigation effectively take on the settlement of administrative disputes, the existing administrative reconsideration and the administrative litigation system must be significant changes, administration system and the judicial system must also be carried out major reforms.

TwoLitigation in legal limitations

Although litigation system is considered by many people as the mainstay of the maintenance of social justice, but the actual function of litigation in solving disputes is still limited. Provisions of its first limited from the law, that is to say, system gives its function is limited.  

(a) the scope of judicial review limit  -

 The court can accept and solve what kind of administrative disputes, depends on the legal provisions. In the current administrative litigation system, Chinese court to administrative cases accepted is still relatively limited. The type and number of administrative dispute fairly, completely beyond the court vision.

First of all, involving political dispute, administrative personnel management, financial expenditure problems, not in the jurisdiction of the court. Secondly, legitimacy of rules and normative documents, the object is not the court may direct the referee. Third, the citizen, legal person or other organization and administrative behavior does not have a legal interest, also cannot sue. For example, civil registration to participate in the civil service examination was not hired may be prosecuted, but for administrative organs "tailored" and did not have the opportunity to sign up, the court is unlikely to accept his prosecution.

Although the court in practice constantly expanding the scope of accepting cases, and in the future with the "administrative procedure law" amendment, the scope of the court may be further expanded, but enlarge the case scope will be limited. In almost any country under the rule of law, the court may not accept all administrative disputes; and in the foreseeable future, China court limits to some more. 

(two) the limitation of judicial review standard

 The court in administrative proceedings examination is the legitimacy of the administrative behavior, is simply "the defendant". This is a basic principle of administrative litigation. The defendant "means, the legitimacy of the court in administrative litigation is not the plaintiff behavior.

"The defendant" principle has its rationality. But in some cases, this is a gap and the public's expectations. In twentieth Century 90 time metaphase "Jiajiang anti counterfeiting case", Sichuan Provincial Bureau of quality and technical supervision for electric mosquito tablets packing box sealed Jiajiang County color printing factory unauthorized printing and related equipment, by which the court. The media have questioned "the counterfeiters had sued the fake", criticized the court did umbrella fake. The criticism of the media contains the administrative litigation system of misunderstanding, because the court accepted the plaintiff does not mean that the court held that the plaintiff legal. But in the face of the public, administrative litigation exposes internal crisis, because it can't answer whether the plaintiff legal problems. Once the defendant beyond the authority, it shall revoke the defendant's behavior, regardless of whether the plaintiff "fraud".

In the real world, disputes often is civil, administrative and criminal interweave, mutual influence.Litigation separation, just by the law court administrative act in administrative litigation, solving the administrative dispute, but related civil disputes and criminal disputes for other programs to solve. For example, held in Liu Qiuhai v. Guangxi Beihai city Yinhai district traffic police brigade vehicle in the case, when the court that the accused detained suspect vehicle traffic accident legal (but extended detention of illegal), the media once again questioned the court. Evade the crucial point. The public wants the court to solve the legal questions, their idea of Liu Qiuhai's "wash

Qu "is understandable, but they do other things he functions in court. Similarly, in the Jiaozuo city television equipment Co. v. Jiaozuo City Housing Authority property registration in the case, when the court proceedings in the decision to withdraw the administrative organs of the housing property registration, winning the plaintiff did not get the final victory, housing registration authorities to review, confirmed still houses belonging to the third people all. Also, in the Shenzhen Xian into building case. The joint venture equity dispute, administrative organ for cancellation of the joint venture and the approval of third people in the. The legitimacy of the court judgment can only solve the administrative organ for cancellation behavior, as for the parties to the joint venture in the civil litigation or arbitration. In the civil, administrative entanglement cases, administrative adjudication is at best reduce less a part of uncertain factors, and can not give a package solution. Even through the administrative incidental civil lawsuit mediation, parties, organizations, as much as possible "to conclude the case", but its function is limited. Like the hospital treatment of a patient with multiple conditions, organization doctors consultation and comprehensive treatment, still faces many obstacles in the judicial system and litigation procedure.

(three) the standard of judicial review limit

 The court review of administrative action standard is its legitimacy. Although the judge can understand legal concept in the substantive legal sense, so as to further determine the legality of administrative acts, but the court cannot replace the administrative organ to make the judgment. In particular to the technical problems and policy issues, the judge had to replace the administrative judge must give honour to. For example, in the doctor's degree evaluation in the case, the judge is obviously not suitable for PhD thesis is to PhD level judgment. In the administrative punishment cases, even if the judge believes that 10 days of detention is more appropriate, but it is hard to say L5 days of detention is illegal.

(four) the limitation of judicial relief means

The court on the legality of administrative review, can make various decisions respectively. But the judicial relief means is still limited, except in exceptional circumstances, the court can not replace the administration decision. Especially to the processing or treatment ordered to accept the application, the administrative organ, final result still depends on agency decisions. So the plaintiff, disputes may still not addressed, the parties had to struggle to litigation in reincarnation. Future changes in the "administrative procedure law", give the substantive problems more court decisions and the right to change, to ease the embarrassment. But in many cases, the effectiveness of litigation to resolve administrative disputes still need administrative consciousness.

(five) the limitation of judicial effectiveness

The judicial judgment is limited only by the cutting force, the parties to the case, but cannot be automatically applied to co parts. Even if a judgment is widely known, it will not immediately bring "implementation of the policy of" effect. A face the same situation, as the dispute be resolved, had to be sued.

ThreeIn fact, the limitation of administrative litigation

In addition to the limitation of administrative litigation law, administrative dispute resolution functions have also been realistic constraints. Mainly, the parties do not want to sue, the court did not want to trial, not after the execution of judgment.

(a) filed a lawsuit if the parties are unwilling to

 On the administrative litigation function of crack expectations often built on a premise, namely the right of damage to the parties to the administrative litigation to resolve disputes, to seek relief. But in reality, there are many factors restrict the parties by way of litigation.

 First is the control of litigation costs. Every citizen has the numerous encounters "street level bureaucrat" yamen clerks "injustice, inefficient experiences in his life. But citizens rarely because of small fees or micro fine suit, is unlikely to be due to the police interrogation, inquiry, "nuisance" will go to court, but not because of the administrative organ unreasonable procedural requirements, not too much of the program delay ran "path" to check evidence of both parties at court.

The second is the outcome of the proceedings of uncertainty. Few of the plaintiff can be certain they will win. Moreover, the reciprocating action period of delay, procedure, there are possible. When the court lack of independence, authority and impartiality, "the court proceedings" into a "court" and the court proceedings, the more difficult to predict, and even "win decision lost" is not strange.

The consequences of litigation considerations, such as reputation and moral concerns, as well as to the administrative organFears of retribution. For example, although the vast quantity of tax law enforcement, tax amount each year by the astonishing speed growth, but the tax administrative litigation cases most years, only a few hundred pieces. A survey found, the public security organs to punish prostitution case rarely encountered litigation, administrative litigation relief system in which almost reduced to the furnishings.

(two) the courts are reluctant to accept and referee

 Administrative litigation to play the function of settling disputes, the courts have the ability to resolve disputes, provide relief is a key. But in many cases, the court will not accept the case that the accepted. Even if reluctantly accepted. The court may not be able to do justice. The court is not willing to accept or referee also have a variety of reasons: first of all, is the court by local authorities limit, rather than accept certain cases. This is the administrative proceedings are now facing the biggest obstacle of the system. In a long period, many local court on family planning "fees, fines and impose compulsory administrative rejected, although the judicial interpretation of the Supreme Court expressly court shall accept such cases. For the rural land expropriation and the city housing units levy (demolition) decision, some local courts in such cases and long-term inadmissible, though the laws, administrative regulations and judicial interpretations have not provided shall not be accepted. The Supreme Court has repeatedly issued, requiring local court faithfully implement the "administrative procedure law", and resolutely eliminate various "limits the administrative litigation of earth policy", it is strictly prohibited to local service center work as an excuse, refuse to accept certain shall accept the administrative case law. Once the "local center", these requirements are difficult to be implemented in earnest. Numerous media reports and empirical research, confirmed the case of administrative litigation judgment difficult, difficult and difficult to implement. Secondly, the court to face some

Tough case, because of their limited capacity is inadmissible. For example, involving "agriculture married women" in the collective economic organizations of the legitimate rights and interests of cases, probably because the responsibility cropland, compensation has been allocated (distribution) is difficult to implement, the court rather than accept.

(three) the administrative judgment cannot be executed

 In practice, there is no part of the implementation of administrative judgment. Seeking further undermining the administrative remedy. This may be due to legal relationship change, such as housing has been removed, the land has been the graveyard, the decision of the court to enforce. Some are due to the administrative organ refuses to perform, the court feel helpless. An extreme example is, Hunan court Tianjin a public security bureau to compensate about 5000000 yuan, after 12 years has not been executed. Zhan Fei v. Shaanxi land and resources department to revoke the mining license case, the defendant was lost through "ACC" denied the court verdicts.

                      The second section supervision of administrative functions

Although in some works, administrative supervision and administrative relief is often put on a par with or even Become, but two completely different focus: correcting the administrative illegal administrative supervision, supervise the administrative organ administration according to law; administrative relief should remedy the damage, protect the lawful rights and interests of the parties. In the system, they may also have conflict, although most of the time the intersection in administrative disputes justice solution.

The court not only solve administrative disputes, but also to supervise the administrative functions through administrative trial. "Administrative procedure law" to "safeguarding and supervising the exercise of administrative powers" provisions of the legislation tenet. But compared with the function of settling disputes, administrative action litigation supervision is subordinate, subsidiary. In the administrative supervision system, the role of judicial review is relatively weak, but indispensable.

One, the current administrative supervision system

Outside the courts, administrative supervision system is the main Chinese supervision of the National People's Congress Supervision, government supervision and auditing organs, administrative supervisory organs and procuratorial organs. Various supervision mechanism has social function and legal effect.

(a) the NPC's supervision

 Supervision of the National People's Congress is the embodiment of people sovereignty principle. Is an important part of Chinese constitutional system. Chinese is a people's Congress system of the country, national and local people's Congress is the highest organ of state power, state administrative organs, judicial organs, procuratorial organs by the people's Congress, responsible to it, subject to its supervision. "The organization of local people's congresses and local people's governments at all levels of law" (2004 Amendment) regulations, at or above the county level people's congresses at various levels shall exercise the following powers: (1) review and approval of the administrative areas of the national economic and social development plans, budgets and their execution situation report; (2) discuss the major matters in all aspects of work within their respective administrative areas; (3) to hear and examine the reports on the work of the people's government at the corresponding level; (4) positive, deputy chief of the election the government at the corresponding level, and have the right to recall members of the people's government at the corresponding level (5) annul inappropriate decisions and orders of the people's government at the corresponding level. "At or above the county level people's Congress Standing Committee supervision law" (2006) supervision provisions are: (1) to listen to and consider the special report on the work of government; (2) to examine and approve the final accounts, hearing and deliberating the plan for national economic and social development, the implementation of the budget report, hearing and deliberating the audit report; (3) the implementation of the laws and regulations of the examination; (4) the record review of normative documents; (5) inquiry and inquiry; (6) investigation of specific issues; (7) removed the deliberations and decisions.

In order to implement the function of supervision, the people's congresses at various levels have taken some measures. For example, the NPC Standing Committee set up regulations for review room in the Law Committee, and formulated the "Regulations for review procedures". The NPC's law enforcement inspection, at least in the NPC level, development as an important mechanism for evaluation of law and legal reform. The local people's Congress in the administrative officials, and the use of fiscal funds, specific social problems and so on, occasionally there are some amazing move. Some places still created in practice. Two assessment "system, the staff of government departments and government departments led debriefing appraisal.

Even so, people's Congress supervision has its legal limit. First, the restrictions on programs, namely people's Congress (and its Standing Committee) is a collegiate institution, any material shall be decided by the plenary meeting of the (Committee) in accordance with the procedure a collective decision. That the decision of the National People's Congress may not start to supervise the behavior of the administrative organ usually. Second, the restriction on the substance, the supervision of the National People's Congress shall respect the division of functions between the state organs, not on behalf of other authority. The people's congresses exercise only the Constitution and the law gives it the authority, but not direct exercise state administrative, judicial and procuratorial. The local people's Congress may revoke the people's government at the corresponding level inappropriate decisions and orders, but usually not repeal or modification of a people's government departments of the decision; local people's Congress members of the people's Government may recall, but can not be given administrative sanctions on an ordinary civil servants.

 But even within the limits prescribed by law, the NPC's supervisory function has not obtained the very good play, some means of monitoring exist in name only. For example, this means of commission of inquiry into specific questions, all levels of the Standing Committee of the NPC is seldom used, and above the county level people's congresses has never used this method, so that the regulations become "Sleeping Beauty clause". Also, the filing and examination of normative documents, "review by the research that there are problems in the regulatory documents, most take place and the departments of communication and consultation, supervision departments to modify or repeal, and its feedback processing results." Overall, situation and the people's Congress SupervisionCongress regime exists obvious gap.

The reasons for this phenomenon exists in the actual political system. On one hand, the actual status of the people's Congress System in the current pattern determines the supervision role of the people's Congress must co.. Although the National People's Congress is the organ of power in the law, but in fact it is obviously not the power center. The so-called "Party committee, government, raise your hand waving hands, although not entirely realistic, but reflects the many people cognition on human status. On the other hand, the deputies also determines the delegates did not supervise the strong desire. Many representatives rather than the election as it is appointed, and on behalf of the Chinese government officials. In this case, "debriefing appraisal is to praise, law enforcement inspection as a mere formality, sing the praises of a review report, two to three through", also not so strange o

(two) the administrative level surveillance

Higher levels of government supervision to lower levels of government, is the natural power of the government at a higher level in the unitary state. The level of supervision includes supervision "to" and "block" supervision, the former including higher levels of government supervision to the lower levels of government and the government supervision on the lower levels of government departments.

"Constitution" regulation, the State Council has the right to change or cancel the ministries, commissions issued inappropriate orders, directives and regulations, change or annul inappropriate decisions and orders issued by local organs of State Administration at different levels; (eighty-ninth) at or above the county level of the local people's governments at different levels of leadership of their subordinate departments and of the people's governments the work of subordinate, have the right to change or revocation of their subordinate departments and people's governments at lower levels of inappropriate decisions (108th). "The organization of local people's congresses and local people's governments at all levels of law" (revised in 2004) the provisions of article sixty-sixth, the local people's governments at or above the county level of the 8 departments under the unified leadership of the people's government, and in accordance with the provisions of laws or administrative regulations of the competent departments of the people's government at the next higher level business refers to

The guide or leader". In practice, the superior government department is to supervise the administrative law enforcement service, not to other transactions (especially personnel problems) exercise of discretion.

The main way to monitor levels of law enforcement statistics, document filing and examination standard, administrative law enforcement qualification examination, inspection of law enforcement, to accept the administrative reconsideration and lawsuit, etc.. In general, hierarchical supervision has the characteristics of wide range of supervision, supervision procedures, supervision and diversity of the active. But its specific scope of supervision mode and the program remains to be further clear legal.

(three) the audit supervision

Auditing is a kind of special administrative supervision. Its basic basis is set 1982 "constitution" article ninety-first: "the State Council to establish audit institutions, financial revenue and expenditure of all departments under the State Council and local governments at all levels, the national financial institutions and enterprises and institutions of the financial budget, audit and supervision." At present, the work of audit and supervision is the main basis for the 1995 "Audit Law", the law was amended in 2006. According to the "Audit Law" (revised in 2006), the object of audit supervision of the auditing organ is the financial revenue and expenditure of all departments under the State Council and the local people's governments at various levels and the departments of state owned financial institutions, enterprises and institutions and other financial revenue and expenditure, according to the provisions of this Law shall accept the financial revenue and expenditure, financial revenue and expenditure audit; audit effort is the fiscal or financial revenues and expenditures of the real, legitimate and effective (second). Auditing organs according to set procedures in accordance with the audit, the audit report; in violation of the provisions of the state financial revenue and expenditure, financial revenue and expenditure behavior, can make an audit decision in accordance with the law, the punishment within the scope of their respective functions, or to the relevant authorities propose treatment, punishment opinions (forty-first).

In practice, since the establishment in 1983 of audit, audit work for a long time are not well known. Until Li Jinhua as audit long period (1998 - 2008), especially in the years after 2004, audit and improve, not only the contents of the audit report was released to the public, and report to the central government departments, is called by the media "audit storm". For example, according to the 2006 audit results, Beijing Railway Bureau, the use of railway capital construction 1.6 million villa style hotel, the State Sports General Administration using 27870000 yuan lottery money to fry, the Ministry of Culture Ministry of education fees of over 100 million yuan, 47710000 yuan fee is not paid, the Ministry of health of idle finance special funds 610000000 yuan...... The audit revealed the results of the 2009, 62 county-level tax bureau for tax non-compliance to complete tasks, 169 enterprises advance tax or tax 2340000000 yuan; sample of 214 enterprises, tax departments violations will be 71 enterprises of 13090000000 yuan tax deferred tax, accounting for these enterprises should pay tax 54%.

In spite of this, many people believe that the audit found and disclosure situation just the tip of the iceberg. And when the disclosure of shocking and officials rarely be held, people questioned why the accountability storm "audit storm". Facing enormous resistance auditing department, appear to have eased the auditing and ways of working, said one of the mechanism of audit departments only to prevent and punish corruption, audit to check problem but more attention should be paid to the construction of system.

  (four) the administrative supervision

   Administrative supervision is an important system of administrative supervision China. In 1986, the National People's Congress decided to recover the establishment of supervision

Police department, responsible for the country's administrative supervision. Local governments at all levels above the county level are responsible for the supervision organ

The region's supervisory work, responsible and report on their work to the level of government and the supervisory organ at the next higher level, supervision industry

Wu to superior supervisory organization. According to the CPC Central Committee, the State Council decision, since 1993

First, the Ministry of supervision and the Central Commission for discipline inspection offices, a set of working mechanism, fulfil party discipline inspection and administrative supervision

And two functions of a system. At present, the administrative supervision is the main basis for the 1997 "administrative supervision law", the

Law in 2010 and revised.

   According to the "administrative supervision law" (revised in 2010), the object of administrative supervision is the main state administrative organs

Other personnel appointed by state administrative organs and civil servants as well as the (second). The authorization of laws and regulations, with

Public affairs management organization and administrative organs of the state to engage in public affairs management activities

Tissue, and personnel engaged in official business, also belong to the object of supervision (fiftieth).

   Administrative supervision content for the object of supervision "law enforcement, integrity, efficiency". The supervisory organ

Responsibilities include: (1) check the state administrative organs at the observance and implementation of laws, regulations and the people's government decision. The problem; (2) to other personnel appointed by state administrative organs and civil servants and administrative organ of the state administrative discipline violations charges, report; (3) the investigation and handling of other personnel appointed state administrative organs and civil servants and the state administrative organs in violation of administrative discipline; (4) accept other personnel appointed the national civil servant in the administrative organ and administrative organ of the state administrative organ refuses to accept the punishment decision to appeal, regulations and laws, administrative regulations of the other appeals handled by supervisory organs; (5) laws, administrative rules and regulations stipulated by the supervisory organ to perform other duties. At the same time, the supervisory organ in accordance with the provisions of the State Council, the organization and coordination, inspection and guidance of the open government work and correct damage the interests of the masses of the unwholesome tendencies

Work (eighteenth).

   The supervisory organ according to the examination, the results of the survey, we can recommend supervision or make the decision of supervision. The suggestions include: correct refusal to enforce laws and regulations, or violation of laws, regulations and orders of people's governments, rectify or cancel the decision; the government at the corresponding level to the government department and subordinate in violation of the laws, regulations or the state policy decisions, orders, instructions; for the interests of the state, the collective interests and the legitimate rights and interests of citizens by damage, take remedial measures; corrected obviously inappropriate recruitment, appointment, rewards and punishment decision; in accordance with the relevant laws and regulations, the administrative punishment; given to order a public apology, suspended inspections, resignation, to resign, removal and accountability; perfect integrity, diligent system, and so on (twenty-third). For the violation of administrative discipline, also can be in accordance with the relevant state personnel management authority decided to give the appropriate punishment or advice given sanctions, confiscation, recovered through the violation of administrative discipline property or ordered to return (twenty-fourth). The supervisory organ according to law the supervisory proposal, the relevant departments should be adopted without any justifiable reason, (twenty-fifth).

From the actual effect, the supervisory organ of the "dual leadership", "office" to a certain extent, weakened the independence of supervisory organs. Operation supervision mechanism and treatment results of transparent degree is low, is not open or semi open state. Supervisory organs to monitor the effectiveness of law enforcement, a mere formality. In addition to perform special governance matters with central or special specification, supervisory organs to enforce the law, policy, decree rarely conduct supervision and inspection, for non implementation, the correct implementation of national laws, regulations and policies and decisions, orders of people or things rarely investigated, rarely has such problems on the recommendation of supervision, less these problems make the decision of supervision and administrative sanctions shall be given.

TwoMechanism of judicial supervision

The court is mainly realized through administrative adjudication supervision to the administrative organ, but is not limited to the court of the administrative adjudication. Judicial suggestions to the administrative organs of the court, some local administrative organ on the performance appraisal, also strengthened the supervision effect of administrative litigation.

(a) the direct function of Administrative Supervision Administration

Administrative supervision function of administrative, first of all reflected in the sued administrative behavior legal review, make corresponding decision. Illegal administrative acts, revoked or confirmed; the administrative organs do not perform their statutory duties, to make; the illegal administrative acts to losses, shall be ordered to make compensation for. For the executive authorities, supervision, this is a case of.

Administrative supervision function of administrative, may also reflect the judicial suggestions to the relevant authorities in a court. Although the existing legal provisions on judicial suggestions are limited, but the judicial suggestions in practice in the past few years seems to get more attention and application not more. Synthesis of judicial practice, the nature of supervision of judicial suggestions mainly reflects in the following aspects: first, administrative organs and their staff in the process of administrative proceedings to the court shall perform their duties according to law or refuse to perform an effective judgment, ruling; second, administrative organs and their staff in the administrative process illegal, dereliction of duty, damage state, the interests of society and others, need to be investigated for the responsibility; third, for the common problems existing in administrative activities, to make recommendations to the relevant departments, so as to provide reference for the improvement of work. The first, two cases with obvious effect of supervision and administration, third cases also have a supervisory role.

 (two) the indirect effect of Administrative Supervision Administration

The court case by case judgment, to establish the legal boundary of administrative activities, creating a potential pressure on the administrative decision. Because of the existence of administrative litigation, administrative organs (including administrative reconsideration) in their decisions, often have "Mantis Catch Cicadas, oriole in the post" pressure. Administrative organs must face the administrative behavior once made, they have sued administrative behavior, there is a possibility of negation. This helps the administrative organ to increase a prudent, reduce a wanton. At the same time, the administrative organ in making decisions, may notice judicial related, especially against the court administrative precedent. The administrative organs to improve their work style play a certain role.

  In practice, some local administrative heads appear in court system, the State Council also "encourage, promote the responsible person of the administrative organ appear in court". This helps to strengthen the administrative leadership on administrative litigation process and results of the attention, to some extent strengthen the supervision function of the administrative litigation. Some local governments put quantity and Adjudication of administrative litigation cases results into performance appraisal of administrative organs, as an index to evaluate the administration status. Although this index is not scientific, there are side effects in practice, but also strengthen the supervision function of the administrative litigation in some degree.

Three judicial supervision limits

As with the function of dispute resolution, administrative supervision function of the administrative litigation is also facing legal and de facto restrictions. It is only a part of good governance to promote system engineering, can't count on it independently afford to promote good administrative role.

(a) don't tell

 A basic principle of administrative litigation is "don't tell". If no proceedings, court supervision is impossible.

The law on administrative behavior type restrictions, to the court administration set up box. Among them, the normative documents will not be accepted rules, to the illegal distribution policy set from reserve of judicial supervision. Some examples of the media in recent years, reports, such as the Zhengzhou just money won't work "Steamed buns do", "dog", make general turmoil "ordinary college teaching level evaluation system", some city to prohibit electric bicycle road rules, litigation parties only on individual decisions on administrative organ, the system of dissatisfaction is hard to be resolved through administrative litigation.

A set of laws to prosecute the qualification, namely the prosecution must have interest relations with the administrative action, also prevented the court supervision to administration. China law also does not admit no legal relationship, purely in order to maintain the objective litigation legitimacy in order to target "". There are some illegal administrative acts directly damage the rights of citizens is not, even if is illegal administrative beneficiary, impossible to bring a lawsuit. For example, some parts of Jiangxi Province Public Security Traffic Police Driving School and collusion, large-scale "sales license", in which Wenzhou drivers in Jiangxi bought a license up to more than 1, and the number of "road killer" in Wenzhou has caused a major traffic accident. Until the Jiangxi Provincial Public Security Department launched a massive raid, Jiangxi Jiajiao reselling license shady gradually surfaced. In other cases, one filed a lawsuit to administrative behavior, but because of the lack of "legal interest", but was not to accept or reject the prosecution. In Jiang Shilin v. Changning County in Hunan Province Bureau of Finance in the case, the plaintiff to the taxpayer litigation request that name, County Bureau of finance budget to buy two cars is illegal, the court in order to not belong to the scope of accepting cases according to law ruled inadmissible on the grounds of. Even with the proceedings, if the plaintiff withdraw the lawsuit in the course of the proceedings, the court is almost impossible to conduct effective supervision. Is that good Tao v. Harbin City motor vehicle inspection department in the case of Harbin ring road charges. City Hall to repay bank loans, the provisions of the motor vehicle must pay an annual fee of two loop uses the public car, pay 1400 yuan a year, private cars each year to pay 1100 yuan. This practice is clearly in violation of the general office of the State Council document "is strictly prohibited provisions of toll rates to all vehicles and forced to charge".

In 2002, the judge in Harbin, Taiping District Yu Shantao administrative proceedings to the court, asked the Harbin city government departments to stop car charge two loop use fee. When people look at the end of the lawsuit, Yu Shantao from the court to withdraw the prosecution. 7 years later, media reports again, two loop "Harbin city to buy road money" to accept as the old.

Modern administration is a complex system. Both traffic congestion control, Protect environment, the revitalization of industry, to promote employment, are involved in all aspects of the administration. Be submitted to the administrative courts, is just a part of the concrete implementation of this system, only a single tree in the jungle of administrative management. Judicial review is "on the case": it can judge whether a tree which is in the correct position, but can not solve the forest conservation. For example, the court can judge whether the defendant of administrative organs act beyond duty, but not related to exercise powers exercised by any authority for. Can the referee court, transportation departments of public security of the parties in violation of road traffic signs of punishment is legal, but not on how to set up a more reasonable road traffic signs. Can the referee court, a university degree issued to the applicant to legality, but not on how to reform the academic degree system. To make a long story short, the court can not tell what is the administrative organ, better administration, and how to give a systematic improvement.

(three) lawful unreasonable

 Even in the face of a specific administrative act (in most cases or the administrative organ has implemented the behavior), the court can only judge its legitimacy. Under normal circumstances, the court can not tell people what is more reasonable behavior. For administrative omission, the court only in limited circumstances require it as, cannot let go-slow administrative organ actively forward, take the initiative to implement. Even if the court stood on the substantive rule of law position, make a more in-depth review of the legal provisions of the literal than on administrative behavior, administrative behavior often still have considerable discretion. The court may rule out some options, but not in the administrative discretion scope should not give the answer. "Lawful unreasonable" phenomenon, in administrative litigation is inevitable.

(four) on the wrong

Judicial review is focused on solving disputes, rather than officials. It is to judge the legitimacy of administrative action, rather than on the administrative officials to make evaluation. The court is not to punish an administrative officials, also not to recognize an administrative officer.

Judicial review is not heavy supervision has its reason. First of all, the modern administrative organization is a complex structure, it is difficult for the court to know an illegal administrative decisions who make, who should be responsible for. Secondly, the administrative decision is a complex considerations: sometimes a superior claim, sometimes officials mistakes, sometimes deliberately abuse. Just like in a criminal trial, the court in order to solve the conviction and sentencing issues, the need to identify the defendant's criminal intent, and even the motivation; but for social reasons, led to the defendant's criminal defendants to implement psychological process before and after the crime, the court neither interest nor the obligation to explore. In reality, the administrative organ often through negotiation and other means, the complainant to withdraw, to avoid court supervision. The administrative system of administrative behavior recognition of judicial decisions, disputes, could potentially offset the supervision effect of judicial decisions.

                      The third section The development of the function of law

 In modern countries, the legislature enacted laws constitute the main framework of the legal system, and the rules and regulations of administrative organs is more specific content to fill the legal system; the Court seems to just "applicable law". However, this kind of legal formalism of understanding, the real picture of obscuring the legal life. A law is not the legislative and administrative organs made provisions, but a standard system of dynamic development of multi-party participation. Through the discussion of the plaintiff's prosecution, court judges, experts and the public, as well as the highest judicial organs and administrative, legislative response, administrative litigation system to promote the development of law.

The functional development of administrative litigation law system neither been legislation about, did not have attracted extensive attention, but it is a fact. Different from the case law of the court, the court Chinese in a unique way of development of the law. Some scholars have analyzed the development of legal system of administrative litigation function, and the function of high expectations.

AThe legal development mode.

The administrative litigation on the development of the law is embodied in various forms. Administrative litigation is a multi-party participation, interaction between administrative litigation on the development of the law but also the multiple legal actors.

(a) form of legal development

 In 1989 the "administrative procedure law" since the enactment of unmodified, but Chinese Yun's administrative litigation system has great development. In addition to "individual provisions of Administrative Reconsideration Law" and other laws relating to the amount of administrative litigation, administrative litigation system development embodies in a series of judicial interpretation of the Supreme Court, especially the "implementation of opinion" (now defunct), "some" and "rules of evidence" to explain. These judicial interpretations, both to clarify doubts law is filling the holes method, almost all from the trial experience or the case question response. In the formal judicial interpretation, the Supreme Court and the local court Administrative Tribunal (especially the high court) has also developed a number of expensive judicial documents, to make the provisions. This kind of judicial document contains a number of innovative provisions, have good results. Also, they may be adopted to obtain the formal legislation, application of higher level of recognition and wider range.

In addition to the legal documents, the judicial referee much more is an important source of legal development. Chinese not a case law countries, judicial decisions on future cases no universal binding force, even the "gazette" published in the Supreme People's Court on the case is so. Therefore, cannot assert cannot count on one or two decision can establish rules, realize the development of law. However, judicial decisions may raise new problems, new sort of rules, and the ripple effects of "case". In this sense, an important link in case judgments constitute legal development, worthy of our attention.

(two) general mode of promoting the development of the law of administrative litigation

 Administrative litigation, promoting the development of the law, to clarify legal provisions, legal principle, promote the creation of legislation. Improved application principle, expand the scope of administrative litigation procedure and a plurality of administrative management domain specific system, provides examples for us to observe.

The scope of accepting cases in administrative litigation, the court of the original breakthrough in understanding through a lot of practice. Especially in the "students to school", is the beginning of the case of sporadic; along with the Beijing Haidian District court to the Tian Yong vs. University of Science and Technology Beijing case acceptance and the sentence was "confirmed bulletin" Supreme People's court, and the subsequent Liu Yanwen v. Peking University case propaganda, this kind of litigation to obtain a wide range of cognition, the court gate have opened. Based on the accumulation of judicial experience and judicial authority, and in general support of academia, the Supreme Court judicial interpretation of the provisions relating to the scope of accepting cases, greatly expanded the scope of administrative litigation.

The development of the principle of due process, because of the influence of academic long-term advocacy and "administrative punishment law", and in the Tian Yong case, Liu Yanwen case, Zhang Chengyin case and a series of cases are reflected in the. Although it is still not clearly affirmed the Supreme Court judicial interpretation, but has already shown its vitality. If none of these cases, the principle of due process is still preaching, foreign law on the books of the story; some of these cases, due process began to become a part of common law, lawyers in court argued due process is no longer "nonsense", the judge quoted due process is no longer "arbitrary law making"

Not only that, more legislative accepted the principle of due process. For example, in the Ministry of Education promulgated 2005 "ordinary college student management regulations" require "the due process principle", the rules of school management to make the interests of students, must obey the authority, conditions, time limit and inform obligation, delivery program.

In some field of administrative management, administrative litigation case also offers the opportunity for the improvement of the system. Zhang Xianzhu v. Wuhu Municipal Personnel Bureau case sparked public attention on the "hepatitis B discrimination". The decision soon, 2004 August revised "infectious diseases prevention law" provisions are added: "any unit and individual shall not discriminate against infectious patients, pathogen carriers or suspected patients of infectious diseases." The Ministry of personnel, the Ministry of health in 2005 January issued the "civil service recruitment examination standard (Trial)" provisions, "hepatitis B carriers, after examination to exclude hepatitis", should be qualified. Not in Nanjing intellectual law firm v. State Administration for Industry and commerce, the Trademark Office shall accept the case, the Beijing first intermediate people's court verdict think, the defendant in a law firm not "Trademark Law Implementing Regulations" provisions "of the trademark agency organization" is a registered trademark of the plaintiff refused to accept as an agent to submit the application, the lack of legal basis, the notice shall be revoked. The decision marks the lawyer the right to engage in trademark agency recognised and protected by the judicial, and ultimately destroyed by the administrative department for Industry and commerce limited to lawyers to engage in trademark agency.

 The summary of these cases, administrative litigation, promoting the development of the law often contain individual innovation, communication review and follow identified three basic links. The first is the innovation behavior, which the court through individual judgments or judicial documents, puts forward some innovative rules or new measures. Put these rules or measures, mostly countermeasures put forward to solve the immediate problems, but rarely is to carry out an abstract concept. These measures tend to be humble, don't get the expression, and even actors lack a clear intention. But these practices often get internal approval and related parties draw support. Second is the communication and review. An innovative decision or new measures must be obtained through media communication. Propagation includes news agencies in or subsequent reports, the court system information briefing, conference materials, communication, and discuss the academic journals. Propagation along with the comments, the decision to comment further propagation. The third is to follow and confirm. A new initiatives need confirmation from colleagues and superiors to follow, can become the example. This effect is not limited to the superior court to the lower court, but to the diffusion effect from all sides, sometimes a lower court decisions may produce nationwide. A case and other cases, affect a large number of sporadic cases continue to accumulate, gradually understand the idea, to change the existing practices, and re shape the legal community understanding of law.

In some cases, the development of the law is not mainly consists of case judgment to complete, but because of the court's instructions or judicial suggestions, the authorities directly reply to the legal issues. For example, the court is not applicable local regulations, mainly by the NPC Law Committee, the Supreme Court and other departments to reply to confirm. But in this process, the administrative litigation case still played an important role in promoting.

Two development of administrative litigation law content

On the development of the law of administrative litigation, mainly applies in the administrative litigation procedural and substantive law. But the system of administrative litigation with the development of the law, is not limited to the court applied in the administrative litigation law, but also affects the operation of administrative organs.

   Open the administrative litigation law of the materials, almost every procedural problems have justice to create shadow. The salient points, reflected in the "explanation" and other judicial interpretations. (1) the scope of the court. From "line 1 1 procedure law" article cited provisions to the "General Provisions" of interpretation, is a great reform recognized. (2) the limitation of action. An administrative authority behavior, did not inform the parties of the contents of administrative act or did not inform the parties apply for relief channels and term, administrative litigation has repeatedly extended time limit. (3) jurisdiction. The judicial interpretations of the Supreme Court, the jurisdiction of the court level is improved, the different jurisdiction to normalization. (4) the incidental civil action. Upon the application of the parties concerned, the relevant and administrative adjudication of civil disputes, can be heard in the administrative litigation. (5) decision. The court in practice to create dismissed the plaintiff litigation request, confirm the illegal administrative acts (legal), invalid (effective) ruling way. (6) for compulsory execution. Incumbent party refuses to perform effective judicial documents, the administrative organs do not apply for compulsory execution, the other party may apply for enforcement. If the impact of the provision of the administrative litigation procedural issues concerning mainly limited to the participants in the proceedings, the court in administrative litigation, the development of substantive issues in a more far-reaching influence. These are embodied in the legality of administrative action according to the application, many problems have not clear judicial interpretation. (1) principle. "Administrative procedure law" provisions "exceed authority" administrative act constitutes a violation of the law, the court earlier confirmed the law priority and the principle of legal reservation. (2) the introduction of the principle of proportionality. "Law" provisions of action only "breach of privilege" and "injustice" approach, the court in practice attempt to introduce the principle of proportionality of the more strict scale. (3) to strengthen the principles of due process. In the laws, regulations and rules on administrative action shall be applicable procedures not clearly defined, the court began to apply the principles of due process to review. The content from the administrative law enforcement personnel told the identity, the facts and evidence, the rights of the parties, to listen to the arguments and reasons. (4) the validity of evidence and timeliness requirements. The court formed the exclusion rule of illegal evidence in practice, as well as to the lawsuit when asked everyone gets things and Jiaozhi evidence time limit (5) the administrative as the deadline. Even if the law, regulations and rules and not by administrative organs administrative action period, by the Supreme Court to prosecute the timing requirements, indirectly determined the general term of administrative act.

ThreeThe legitimacy and limitation of administrative litigation law development

Through the development of administrative litigation law is an undeniable fact. We should not only affirm its legitimacy, but also to see its limitations.

(a) the legitimacy of administrative litigation law development

First of all, the court is required the development of legal loopholes. The law, do, things infinite. No matter how brilliant legislator, also is not possible to foresee all future problems; whether legislative authorization reauthorization, regardless of the law more fine, by the legal system of statute law provisions are not in a disastrous state weaving. By legislators later supplemented by legislation to remedy flaw or amend the law to balance in the case of injustice, handling of the case is too slow and seems unrealistic. Fold only fabric by law enforcement law by legal interpretation to ironing. Law enforcement "applicable law" enacted law is not clear, there are loopholes or limited law literally will lead to intolerable obvious injustice, often need according to the principles of law, public policy, social habits, equity theory, various legal value after the therapy.

Secondly, the development of law is the rule of law courts need dialogue. The legislature declared legal, but not the monopoly of production. The administrative departments of long-term and extensive set the rules, and the parties acknowledge. The court is involved in the development of law in its own way. Although China court has no precedent, but it through case judgment rule of law, and clarify the legal problem, cause legal discussion. The legislative, administrative and judicial departments together constitute the dynamic process of legal dialogue. This is not a matter of expediency China construction of legal system in the primary stage, but a sound rule of law and order is always necessary.

(two) the limitation of administrative litigation law development

 The court on the development of the law, especially through the case judgment push for the law, its role is very limited. This limitation not only from the China court win the actual status of weak in the political system, but also from a predetermined character in the constitutional framework of justice. First of all, is the lack of democratic legitimacy of the court. In modern democratic countries. The legislature has democratic legitimacy, and the court's relative lack of. Secondly, the court often do not have the expertise to solve complex social problem required. The court should obey the law of the boundary, but in the face of the complex problems of modern administration, the court is often not equal. Third, and the legislative and administrative organs through legislation to promote reform, consistency and simplicity of judicial decisions much worse. Therefore, the development of the law court severely limit, also should consciously control. First of all, in addition to give the court the power of judicial review of the state, court judges can not contravene the laws enacted by the legislature. For example, the court can explain the scope of accepting cases of administrative litigation mode and the specific administrative act of meaning, and enlarge the range of administrative litigation, prohibits the court can not ignore the "administrative procedure law" in article twelfth. The Supreme Court through judicial interpretation of the different jurisdiction normalization, but can not abolish the jurisdiction court.

Secondly, even if not inconsistent with the legislation, on the big issues, the court cannot unilaterally substantial driving system reform important. Some things can be done, the legislature, the administrative organ may do, but the court can't do. When the enthusiasm of the citizens to promote education, household registration, family planning and other major system changes, the court completely incapable of action. For example, the popular media attention Zhang Tianzhu v. Ministry of education college admission scores in the case, the Qingdao examinee Zhang Tianzhu et al in 2001 August sued the Ministry of education to the Supreme court. The plaintiff argues that the Ministry of education, "about the enrollment plan" in 2001 the ordinary higher education according to different regions and restricts the range of enrollment, leading to differences between different districts score standard huge (in liberal arts focus line as an example, Shandong Beijing higher than L26). The plaintiff's score, in Beijing may be admitted to a key university, in Qingdao can only be read vocational or TV, or even completely without hope. The Ministry of education's behavior violated the equal right to receive education. No acceptance of the plaintiff. In the process of sea account transfer case, working in Beijing but the account to apply for a residence in Beijing City Public Security Bureau Changping branch in Hefei Chenghai, requirements for permanent residency in Hefei City as he moved to Beijing City, the formalities. Changping branch refused to move, at the same time also refuse to move out of hefei. In 2007 April, Cheng Hai successively to Hefei City Public Security Bureau Luyang branch and the Beijing Public Security Bureau Changping branch on the court, asked for free transfer procedures, the claim has been rejected. Similarly, upbringing in Yang Zhizhu, Chen Hong v. Beijing city population and Family Planning Commission of Haidian District social case, China Youth University for Political Science teachers Yang Zhizhu tried to challenge the current family planning policy and social compensation fee collection system in the court, the court of his views did not make any positive response. And so on a case involving the reform of college entrance examination system, the household registration system, abolishing the family planning policy adjustment, although has been put on the schedule or come to a crossroads, but obviously not suitable for the courts to decide and declare. The court in his lack of democratic legitimacy and professional legitimacy, had to leave the legislative and administrative organs.

The function of administrative lawsuit limitation, the provisions from the law, but also from the social reality factors. To further develop the function of administrative litigation system, perfect the legal system and depends on the willingness and ability, also depends on the legal action of specific social conditions.

To solve the dispute is the main function of the administrative litigation system. Administrative litigation function should mechanism integration and reconsideration, letters and other dispute resolution. By improving the court's political status and specific system to improve the administrative litigation, the court to resolve administrative disputes have great potential. But the design of the system of administrative litigation is bound to its practical functions to solve administrative disputes can not be unlimited amplification.

Administrative supervision is the function of the courts to resolve disputes function based on the derived function. The court supervision and administrative functions should and supervision of the National People's Congress, the administrative organ at a higher level of supervision and audit supervision, administrative supervision and coordination. Also the court dispute limitations constitute the administrative supervision function largely restricted to. The function of administrative litigation law development in both theory and practice has been seriously neglected, but its actual function cannot be denied. Judicial and legislative, administrative participation in the development of law, is an important way to the rule of law and order construction.

But by the democratic legitimacy, professional knowledge of the limitations and the judicial rules through lack of form, development of administrative litigation law must be limited, should also be abstemious.