Research On The Type Of Payment Lawsuit

The revision of the administrative procedural law adds the type of prestation litigation and classifies the types of litigation,in a broad sense,into two subtypes: obligation imposing litigation and general prestation litigation.Both of them provide a complete category of litigation for the realization of the right of claim in public law.However,the administrative procedural law only constructs two kinds of judgments for prestation litigation from the relationship between litigation and judgment.As for their respective application scope,litigation function,special requirements,the content of the judgment,the basis of the adjudication,the relationship with other kinds of litigation,and so on,there is no provision for the trial rules and the procedure thereof.In judicial practice,the lack of trial rules and procedure concerning the type of litigation of prestation must bring difficulties to the application of substantive trial of the type of prestation litigation.Since the administrative procedural law has already set up the type of prestation judgment,it is indispensable that the relevant trial rules of the corresponding type of compensation litigation should be clarified.The purpose of this paper is to clarify the rules and procedures of the subtypes of prestation litigation,so as to realize the development of prestation judgment along the direction of refinement.The main body of this paper is divided into 5 parts.Chapter 1 starts with the concept,and it classifies the broad concept of the type of prestation litigation,into special prestation litigation(obligation imposing litigation)and ordinary prestation litigation(general prestation litigation)from the perspective of “object of action” and “content of prestation",,and explains the difference of them in the content,precondition and adjudication mode and the duration of enforcement and prosecution.Starting from the unity of the classification standard of the types of litigation of prestation,this paper puts forward that the "three-point law",which is not consistent with the classification logic,including obligation imposing litigation,general litigation and prohibition act lawsuit,should be included in the litigation of general prestation litigation.The revision of the administrative procedural law adds the type of compensation litigation,and at the same time clarifies the new "litigation judgment relationship",the expansion of the content of the payment,the burden of proof for the payment of litigation,and the limitation of the litigation period of the compulsory litigation for the type of the prestation litigation having a certain embryonic form.However,from the type of judgment to the type of litigation,there are still many system gaps in the current administrative procedure law.For example,the contents of each sub-type of prestation need to be clarified,and whether the obligation imposing litigation must go through the first procedure,how to specify the special elements of the subtype of the payment action,how to select the type of the prestation action and other kinds of action,what is the basis of the discretion of the payment action,and the rules of hearing the suit and its sub-types need to be clarified.These all for the starting point for the following study.Chapter 2 revolves around the type of prestation litigation(obligation imposing litigation).Obligation imposing litigation is to compensate the function that the revocation litigation cannot achieve.The function of litigation is to ensure the civil public law claim right to obtain judicial relief,and at the same time to urge the administrative organ to fulfill the legal act obligation.Obligation imposing litigation should have a wide range of application in administrative prestation field,administrative license field and the matters that need specific administrative act to establish,change or destroy the legal relationship.The special elements of subtype of obligation imposing litigation "refusing to make a specific administrative act" should include that the content of prestation should be an objective and specific administrative act,and it must have filed an application or have the obligation to make a specific administrative act in accordance with its authority and the plaintiff must claim that his rights have been impaired,etc.For "action for delay in the performance of an administrative act",there is also a need to add the requirement that "the administrative authority has not taken a substantive decision within an appropriate period" and "the time limit for prosecution".The judgment of obligation imposing litigation should have two conditions: the right to sue and the ripe time of judgment.The content of the judgment should be based on whether the administrative organ has discretion to make "specific judgment" and "reply judgment".Different from the revocation action,the criterion of judgment of obligation imposing litigation should be based on the fact and the legal state at the end of the final speech debate,and in special cases,it should combine with the administrative organ to make the decision or the application time of the plaintiff for an administrative act,is the judgment basic time.In Chapter 3,this paper discusses the function,scope of application,legislative cases,special requirements,judgment and other trial rules of the types of litigation for ordinary prestation.(general prestation litigation)And separately elaborated the preventive omission action,the norm promulgates the lawsuit,the result in public law removes the claim right to have the dispute to pay the content special situation.The special elements of the general prestation litigation include that the reason of prestation which should be based on the administrative legal relationship,the content of the prestation should exclude the specific administrative act,the necessity that the right protection exists,and it must not belong to the prestation of the withdrawal of the petition for merger and so on.In Chapter 4,this paper discusses the selection and application of subtypes and other kinds of litigation.The choice of the applicable preposition depends on the judge’s duty to clarify,the logical classification of the kind of suit,and the relation type of the kind of suit as the precondition.The principle of selecting the type of litigation should be combined with the consideration of the legitimacy of the three factors: the priority over the administrative legal relationship litigation,the purpose of the plaintiff’s litigation request,and the supplement of the type of administrative litigation.The choice of obligation imposing litigation and revocation action is as follows: "shared revocation action" has legitimacy only under certain circumstances;In the specific cases,such as competitor action,adjacent party action,benefit administrative act relief,administrative permit,administrative agreement and social prestation,these two should be combined with the case itself.The relationship between obligation imposing litigation and affirmation of illegal action is that affirmation of illegal action is embodied in the obligation imposing litigation,and in the special circumstances,obligation imposing litigation can be transformed into "continuing confirmation action".The selection standard of obligation imposing litigation and general prestation litigation is the content of payment and the degree of materialization of the legal relationship.The relationship between the litigation of general prestation and the action of revocation is that general prestation is more favorable to the purpose of the plaintiff’s claim,so long as the substantive law clearly determines that the refusal that prestation is the specific administration act,then the merged revocation action can be canceled and the general prestation action can be brought;in the case of the result removing the right of claim,when the administrative act is executed,the plaintiff can initiate the action of the revocation action and merge the general prestation action.The relationship between the general prestation action and the confirmation action can be applied by analogy to the "continuing confirmation action" rule that is suitable for obligation imposing litigation.The Chapter 5 is based on the theoretical research results of the above sub-types of compensation litigation and the practice of administrative trial in our country.It explains the types of prestation judgment of the article 72 and 73 of the administrative procedure law respectively,and analyzes the necessity,function,condition and path of typology from the current types of prestation judgment to the types of prestation litigation.