The struggle to right is active, not passive to, completely rely on charity to get things always doubtful and difficult to let people know how to cherish. The legal right is even more so, the recent Sany sued America President Obama case made in newspapers, television, network, raise a Babel of criticism of, revived in the discussion of China's State Council as the defendant in administrative litigation, there are even lawyers directly to the Supreme Court to sue the State Council administrative not as an administrative complaint.

In the theory of law, the State Council as an administrative organ, if to perform administrative duties, perform administrative tasks in breaking the law, have the court may, at this time as the people's Court judicial organs shall perform the obligations of the trial function. But the law is not law, law on the State Council can as a defendant in administrative litigation is not there. If not, whether they should be, how to get this right? If there is, how to activate the law, the legal to real rights, the paper law truly become the court the living law? These are not only the legal issues worthy of discussion, is a major practical problem how to achieve the legal rights of the.

For about legal rights, most often the legal people indulge in elaborating on than America Supreme Court dispute to the Constitution does not expressly provide for judicial review power. In fact, as early as in1787Years American constitution waiting for the time, Hamilton had been aware of the duties of the Supreme Court of course including "contrary to constitutional intent announced all the act is invalid" ("Federalist Papers" article78Article). But in fact, the constitutional rights of this until1803It was the chief justice Marshall in a creative way to win. Prior to this, the Supreme Court justices as, hard and don't please, for the famous legal experts like chicken ribs, many people refuse to assume, and the Supreme Court after the case of under the leadership of Marshall, eventually won the dignity and authority, has a mysterious force play a decisive role, justice has become amazing constitution protector.

For the domestic legal person, for this important constitutional rights more amazing, but also to give people inspiration, in the present China, in most cases, the important thing is not to fight for the law has explicitly rejected the "right", but for the legal rights, or are not expressly but the legal reasoning can be easily obtained rights, namely how to activate the law, the legal right into real right. Therefore, the power of judicial review court do not think, the constitution of our country has its definite entrusted to the National People's Congress and its Standing Committee, to be discussed here is in administrative proceedings, the defendant can become a problem.

One, the State Council is not due to the abstract administrative act as the defendant

According to the "administrative procedure law" article11Tiao Hedi12A people's court, only accept citizens, legal person, or other organizations may initiate litigation against the specific administrative acts. Therefore, for the State Council, issued administrative regulations and universally binding decisions, orders the abstract administrative action, the people's court has no right to accept, the State Council also won't be the case.

Two, the State Council is not due to some special behavior become the defendant

According to the "administrative procedure law" article12In its1999Years of judicial interpretation of article1Through article4The implementation of the State Council, the people's court the following special behavior without the right to accept the:

1The State Council, in accordance with the Constitution and laws, in the name of the country to implement the relevant national defense and foreign affairs behavior, and declared a state of emergency, the implementation of martial law and acts of state such as general mobilization;

2Decision of the State Council, the staff rewards and punishment, or relates to civil rights under the State Council obligations;

3The State Council, mediation may be made, not mandatory administrative guidance actions and reject the parties mentioned double disposal action appeal for administrative behavior.

Three, the State Council has to avoid some of the administrative reconsideration case the defendant

According to the "administrative procedure law" article12The "administrative reconsideration law," article14A, refuses to accept the specific administrative acts of the departments under the State Council or provincial people's governments, should bring an administrative reconsideration to make the specific administrative act of the departments under the State Council or the people's government at the provincial level, the decision on the reconsideration is still not satisfied, can bring an administrative lawsuit to the people's court, also can be to the State Council for arbitration. If you choose the latter, the State Council made the decision that is the final award, the parties may not the final decision of the State Council administrative litigation. Here, the State Council has to evade, not be the administrative lawsuit defendant.

Four, the majority of the specific administrative act is made in the name of the organisation, will not be the defendant in administrative litigation

The State Council is the highest administrative authority to manage state affairs, the administrative authority is mainly through its under the State Council ministries, commissions, agencies, offices, the deliberation and coordination agencies completed, the vast majority of cases and not in his own name to direct the implementation of the specific administrative act.

According to the"Administrative procedure law" article25In its1999Years of judicial interpretation of article20Article, article21A, as long as the state department subordinate organizations by laws, regulations or rules expressly authorized in its own name, they made the specific administrative act, the parties accept the lawsuit, the authorized institution is the defendant. Obviously, these institutions may not have the legal authority, but to obtain the laws or regulations authorized extremely easily, which avoids the when they made the specific administrative act by the authority at the next higher level, the State Council as the defendant of administrative litigation may.

From the establishment and implementation of administrative license can be seen more of the State Council and its subordinate relationship mechanism. According to the "administrative licensing law" article7Article, article8Article, article14Article, article18One, the law and the State Council issued the administrative regulations, decisions can set the administrative licensing, according to the laws, regulations and rules, can change or withdraw the effective administrative license, if the administrative proceedings, the implementation of the administrative license institution is the defendant. According to the2004Annual "state department do need to retain items of administrative examination and approval set the administrative licensing decision", which300Items of administrative examination and approval items provides the authority for the State DepartmentAnd commissions, agencies, offices, these institutions also have a statutory management related administrative powers, administrative license application in the lawsuit, according to law shall be made in various institutions for the defendant, the defendant will not become an administrative licensing act.

Five, the State Council to be not as administrative lawsuit defendant

The State Council if not to their own specific administrative act on behalf of the citizen, legal person or other organization, the party cannot directly to the State Council for the defendant to bring an administrative lawsuit, but if the parties to the administrative omission lawsuit under the State Council may bring a lawsuit, the scope of the case has become very widely, at this time, the State Council is likely to become the defendant to specific analysis.

1If a lawsuit, administrative omission is belongs to the State Council shall perform the administrative regulations, rules and decision command right agency review right, administrative measures, regulations, proposed the bill right right of administration management and supervision right of constitutional law of the authority, the authority belongs to the act or omission, will directly or indirectly widely affect social not specific civil legal person or other organization, should not belong to the provisions of the administrative procedure law, the court shall accept the specific administrative act, the legal authority to fulfill the requirements of the State Council of citizens, should other channels and ways to take legal provisions.

2If a lawsuit, administrative not as belonging to the provisions of the administrative procedure law, the court shall accept the specific administrative act, but to fulfill the "as" the law should belong to the scope of the State Council a subordinate agencies, the agency shall be the administrative litigation cases corresponding to the accused, the State Council will not directly into the administrative nonfeasance. The defendant.

3If a lawsuit, administrative not as belonging to the provisions of the administrative procedure law, the court shall accept the specific administrative act, but without any administrative organ shall perform the duties according to law, the State Council has the potential to become the administrative nonfeasance case. But according to the administrative organs at all levels are provided, which may not have an administrative authority can not be classified as to all types of administrative institution under the State Council to, it is difficult to become the administrative nonfeasance case.

Six, the State Council shall, as for the specific administrative act made on their own behalf refuses to accept the administrative litigation cases filed a lawsuit against the defendant

According to the "constitution" article89The State Council has, "according to the Constitution and laws, to issue decisions and orders", "national leadership does not belong to the ministries and commissions of the administrative work", "the legitimate rights and interests protection of overseas Chinese, returned overseas Chinese and their relatives in the protection of the legitimate rights and interests", "implementation of the NPC and its Standing Committee awarded the other authority" and other terms.

And the "administrative procedure law" article11"The provisions of the people's court may initiate litigation to the following specific administrative acts......" , No.12"The people's court shall not accept the provisions which have universal binding force on the making of the administrative agency, issued the decision, ordered a suit against", article25"The provisions of the administrative organ that is the defendant",1999Years of judicial interpretation of article1"The people's court shall not accept the provisions made by an administrative organ on the rights of a citizen, legal person or other organization obligation not to have a real impact behavior may initiate litigation".

Obviously, the State Council has the right to also have the possibility to publish is not universally binding decisions and orders, may also directly to the specific administrative action in its own name in some specific object, as long as these decisions, orders and the specific administrative act to the specific object of rights and obligations produce actual effect, once the refuses to accept the object and administrative litigation, in accordance with the law the State Council shall be the administrative lawsuit defendant.

In addition, the State Council Premier shall assume overall responsibility for the prime minister in the law, the legal representative is equivalent to the State Council, duty behavior should be regarded as the State Council Premier behavior. So, when prime minister within various frequent examination, inspection, examination, sympathy, access to the citizen, legal person or other organization, the specific instructions, is a specific administrative act in the State Council in its own name, if these orders to the specific object of rights and obligations arising from the actual effect, and the specific object dissatisfied, shall have the right to bring an administrative action directly to the State Council, in this case, the State Council is the course of the defendant in administrative litigation.

Due to the difficulty of data collection and research conditions, the above two types of state behavior, especially the first class, I still can't find the concrete may be the State Council as a defendant in administrative litigation cases, but it can be predicted, under current law, if the court, the above two categories of the State Council behavior is a breakthrough in the most likely.