Administrative judgment, America and judicial review

American "administrative action" (AdministrativeProceedings), refers to the administrative organ is relevant to opposite party's rights and interests, in accordance with the administrative procedure law or other relevant legal procedures to adjudicate activities. Including the administrative fact about controversial decision in the formulation of regulations in the activity. America Federal Administrative Procedure Act (Administrative Procedure Act) regulations twelfth item 551st: "administrative action" includes the administration regulations, licensing and production order activities. America law and China's "administrative procedure" is a word meaning similar words is "judicial review" (Judicial Review). Refers to the court shall be the administrative counterpart application, review the legality of administrative acts, and make the corresponding decision activities. Therefore, USA administrative litigation refers to two different things: one is that Americans own administrative litigation, administrative organs of the administrative adjudication; another is our Chinese according to USA administrative litigation understand us China system, namely USA court for judicial review activity. Here, America administrative litigation refers generally corresponding to the administrative litigation in China American judicial review. Hereinafter referred to as the "judicial review", refers to the administrative litigation system and our similar system.

Judicial review American does not equate to the administrative litigation of our country. America neither special administrative trial mechanism corresponding to the administrative tribunal of the people's Court of China, no special adjustment of administrative trial corresponds with the administrative procedure law of our country's unified administrative procedure code. American judicial review and administrative adjudication has close connections, judicial review is based on the widely, the perfect administrative adjudication system. Administrative institutions USA equipped with a specialized administrative adjudication function similar to the court administrative judge (Administrative lawjudge), the application of administrative adjudication American is similar to the court the judicial process of quasi judicial procedure (Quasijudicial Procedure), administrative cases American or related administrative cases, most of them through the administrative adjudication of administrative organs. Administrative adjudication can be considered to be preliminary procedures America administrative lawsuit, administrative adjudication institution can be thought of as the court of first instance America administrative litigation.

The formation and development of the system of administrative litigation, American two

Although American judicial review system can be traced back to the founding of the federal judicial review USA [in 1803 the Supreme Court case of Marbury v. Madison (MarburyV.Madison)]. But after long term for the formation of America real administrative litigation system. The system of administrative litigation, American, with independent administrative judge system and judicial review on administrative behavior and administrative decisions to strengthen and perfect gradually.

Effect of legal system of American early by the British common law. Due to the doctrine of sovereign immunity limit, the government can not as a defendant. The administrative relative party of government acts, not to sue the government. The government and its civil servants behavior caused the administrative counterpart damage, opposite party not to court demanding government compensation. Only in the civil service and malicious violation of opposite party's rights and interests, causes each other the case of serious losses, the opposite party to a lawsuit of civil servants, the civil service requirements of individual bear tort liability. This system is not conducive to the protection of the administrative counterpart's legitimate rights and interests, is not conducive to the supervision of the government administration according to law, is not conducive to encourage civil servants to promote administrative duties. By the late nineteenth Century, in order to regulate all kinds of new social relations, resolving social contradictions and social problems in a variety of emerging, the government began to carry out extensive intervention on social and economic activities and behavior of the other party, government function is greatly increased, the administrative power is expanding, administrative organ for expansion. The emergence of independent management institutions set certain legislative, judicial and administrative powers in a "" (IndePendent Regulatory Agencics). Independent regulatory agencies not of Congress, not from belong to the court, nor do they belong to the president. It is not only the exercise of executive power, the exercise of regulatory quasi legislative and quasi judicial power and the adjudication of disputes. We must strengthen the judicial review as the restriction to administrative power.

The first independent USA management mechanism is the interstate commerce commission established in 1887 (Interstate Commerce Commission). Its main function is to manage the interstate rail transport, adjust the price of transportation, against monopoly and unfair competition. It has the power to make regulations and administrative adjudication of disputes. USA in late nineteenth Century to mid twentieth Century, and established a number of such institutions. Such as: the Federal Trade Commission, the Federal Communications Commission, the Federal Reserve, bonds and Exchange Commission, Labour Relations Board, NASA, the Veterans Administration, the Tennessee Valley Authority etc.. In twentieth Century seventy time, and a large increase in the independent regulatory agencies, such as the consumer safety management committee, the environmental protection agency, the Nuclear Regulatory Commission, Occupation Safety Commission, the Federal Election Commission, agricultural credit administration, agency for international development. The mechanism of expansion and the expansion of the administrative power, have caused the social concern, requirements for the executive power to control. Control is the main form of administrative procedural control and judicial control. Federal administrative procedure American law passed in 1946, is an important law in administrative procedure control. At the same time America Congress passed the Federal Tort Claims act. The law clearly stipulates that the federal government, any personnel in the scope of internal fault, illegal act or omission, damage or loss of people's property, or a person injury or death, the victim can be America government as a defendant, to sue in federal court, claim for compensation. The negation of the doctrine of sovereign immunity of government in the law, to remove the administrative litigation obstacles. In twentieth Century sixty years after the law, the phasing out of the most exceptions to the Federal Tort Claims Act, expanded the scope of administrative litigation USA.

Characteristics of three, American administrative litigation

American administrative litigation has the following characteristics:

1 ordinary court administrative cases: USA neither French administrative court style, nor the administrative tribunal of Chinese style, the administrative case trial by general court uniform.

2 no code separate administrative litigation: American court administrative cases, special rules, provisions for civil procedures shall apply uniform and some special law such as: the administrative procedure law, judicial review law, tort law.

3 administrative litigation mainly take the form of judicial review: America court administrative cases is mainly administrative acts of administrative department or independent agency review. Judicial review has close connections with the administrative adjudication.

The scope of administrative litigation by 4 different formulation to determine the law and common law: as the party in administrative litigation and administrative cases, according to court, can be a variety of laws and regulations, can also be a variety of writs of common law, also is the constitution. For the law expressly exclude judicial review of administrative acts and legal authorization of administrative behavior of discretion, the party does not file an administrative lawsuit to the court, unless the agency has the authority or abuse of power situation.

5 administrative compensation for basic civil rules: Although the abolition of sovereign saving rabbit principle, but still have an impact, the Federal Tort Claims Act applies only to certain administrative areas, but not for all administrative areas. In addition to the Federal Tort Claims Act, opposite party can also according to the civil rights law and special law administrative compensation litigation. In the absence of definite law according to circumstances, for some administrative tort, opposite party can directly use the constitution to file an administrative lawsuit.

(author: Liu Jie, doctor of law, Beijing Dacheng Law Firm Shanghai branch lawyer, arbitrator of Shanghai Arbitration Commission)