On The Ground Of Administrative Judgement

The grounds of administrative judgement are the base and provide the space for the administrative litigation. The law used by the people’s court is the criterion for the administrative judge judgement. This concerns not only the extent the protection given to the litigant but also the force which checks the administrative power. What’s more this is an important issue which concerns the national rule of law and constitutional system.This dissertation begins from the separation of powers in constitutionalism, added with the all kinds of elements which affect the practical administrative judges, explains the three links, which are the founding of ground of administrative judgement, the choice of ground of administrative judgement and the adoption of ground of administrative judgement. This dissertation aims to frame the proper ground of administrative judgement and set up its operation system in order to make it suit the constitutionalism. It also tries to explore the system of ground of administrative judgement with Chinese characteristic.First, the theoretical basis of ground of administrative judgement. The ground of administrative judgement is a mirror of rule of law in a country, which reflects the common principle of rule of law. Constitutional separation of powers is the logical beginning of the ground of administrative judgement. The ground of administrative judgement is the junction area of different national powers, which shows the interrelations of the powers in national constitutional system. The judicial independence and its degree control the independence of the ground of administrative judgement. The scientific and reasonable administrative judgement system is relied on the improvement of judicial power in the national power system. The activeness of judicial power is limited and can not go much further and surpass the American and English constitutionalism. On the contrary, the judicial power should mind its own function and use it better, and fulfill its function in its own area to keep and improve the justice. The scope of ground of administrative judgement is generally same with that of legal origins.Second, the practical ground of ground of administrative judgement. The ground of administrative judgement symbolizes the rule of law. In the practice there are many elements which deal with the founding, choosing and adopting. In dealing with the rule of law and politics, it is necessary to foster the Party’s position. In the court system there is administrative tendency in the upper and lower courts and judgers. This betrays the inner rule of judiciary and seriously blocks the function of ground of administrative judgement. In the transitional society, there are all kinds of social powers, such as interest group, media and mass, in different ways affect the ground of administrative judgement, among which there are positive ones as well as negative ones. So it is necessary to balance them. Meanwhile freedom and order, as the two values of the law, should be carried out in the whole process of ground of administrative judgement.Third, the founding of ground of administrative judgement. To found the ground is the basis of legal adoption. The area of legal ground and its scope is decided by the legal origins. Our constitution is a political one in principle and outline and can not be directly used in judiciary. Law is the only and necessary ground in administrative judgement, which is decided by our national constitutional system. The‘grounding’position of administrative law and local law should be changed and set up the reference institution. The autonomy regulation and single rule should in the reference, except for the ones granted by the Supreme Court. The legal explanation should be treated by its’author. The other regulation documents are not law and must be only in the reference position in administrative judgement. The legal principles, previous cases and customs is not in the legal system, but will have potential effect in the judge. So it can be kept and take its directive function but should obey certain rules.Forth, the choosing of ground of administrative judgement. Choosing is based on the reviewing. Currently, the problems are that the legislative review and administrative review are emphasized but the judicial review is weak. The solution is to set up the compound review of legislation, administration and judiciary, among which the judiciary is in central and decisive position. Additionally, the regulation and lower law should be reviewed by the judiciary. The direct review is subsidiary, while the indirect review is the main. The results of the reviewing should be sure and recognized. In dealing with the contradiction of the regulations, the court can solve it by the principle that the upper law is prior to the lower law, and special law is prior to the common law, and no tracing the previous ones. As for the certainty, it should be submitted to be explained and judged, which should follow the legislative law.Fifth, the adopting of the ground of administrative judgement. The explanation is the base and core of the adoption. In our current legal explanation system, the position of court is not high enough and can not meet the requirement of rule of law. So it is necessary to enforce the central position in the legal explanation, recognize the lawyer’s power in explanation, enlarge the case explanation, set up the case judgement institution, and regulate the effect of legal explanation. Based on the feature of administrative litigation, legal explanation should not only keep the integrity of rule by law but also respect the administrative explanation, not only foster the final principle of judiciary but also keep the favor of the litigant. To maintain the multiple methods in explanation and keep the priority of the text and focus on the purpose-oriented explanation will make the legal explanation in independence as well as having interrelation and remedying each other. Courts should make the review in whole way and admit the freedom in certain administrative area. The citation of the law shows the justification of the legal adoption and the important way to make the results recognized by the society. The legal neglects is objective and can be changed by subjective purpose. Judges can remedy it by using the principle added, similar adoption, purpose shrinking or enlarging. All these must be carried out in law and can surpported by the reasons.Sixth, the fault and remedy of the ground of administrative judgement. The operation of ground of administrative judgement is a complicated process of theory and reality, institution and practice, subjective and objective. Man’s rationality is limited and law has its own rule in operation, so it is unavoidable that there will be mistakes in finding, choosing and adopting the ground of judge. To deal with these faults, there are several remedy solutions which fit the faults in its nature and degree, such as correcting, compensating, cancelling and re-judging. The fault in the ground does not mean that the case is a mistake and the judger has to take the responsibility. The judger must be investigated on the condition that he breaks the law deliberately or the fault is grand. It is necessary to protect the judgers’immunization.