The Administrative Litigation For The Substantive Resolving Of Administrative Disputes

From the two basic aspects of the national governance system and the improvement and promotion of the national governance ability,the normative system of administrative law is the core part of the national governance system and the basic legal guarantee for the improvement and modernization of the national governance ability.Under the requirement of promoting the modernization of national governance,the value function of administrative litigation is promoted to the level of national governance.To this end,the Administrative Procedure Law of the People's Republic of China(hereinafter referred to as the new law)of May 1,2015 wrote“resolving administrative disputes” into the“soul”clause,and listed it as the first of the three functions of administrative litigation,such as resolving administrative disputes,relieving administrative relative human rights and supervising administrative organs to administer according to law,which is the legislative response to the return of administrative litigation to resolving the essence of administrative disputes and the modernization of state governance.As a result,this paper examines and evaluates the basic pattern and outstanding problems of the realization of the primary function of“resolving administrative disputes” in the new law,and constructs and forms the working mechanism of“three-stage mechanism + three-system nine-step paradigm”,which includes the whole process of filing,litigation,execution and administrative non-litigation,both have important theoretical self-consistent value and practical reinforcing significance.Chapter one Theoretical Interpretation of the Function of Resolving Administrative Disputes by the Essence of Administrative Litigation.The study of administrative dispute resolution function is a systematic project,which should be placed in the monism,two-element theory and three-element theory of administrative litigation function.At the same time,it is also necessary to prove the function orientation of administrative litigation in the modernization of national governance and its interactive logic and response mechanism with the function of administrative dispute resolution,that is in the context of the modernization of national governance,the examination of the function of administrative dispute resolution can not be limited to talking about litigation,it must be placed in the whole legal system,such as constitution,procedural law and administrative law,which presents different features from the function of administrative litigation under governance under the perspective of different departmental laws.Chapter second An empirical study on the function of resolving administrative disputes.On the basis of the consideration of improving the validity of the analysis,using the trial data of A provinces and C municipalities directly under the Central Government before and after the implementation of the new law,the analysis shows that the administrative litigation after the implementation of the new law still presents a lag and limitation in the administrative dispute resolution,which is manifested in the obvious lag in the ability of administrative litigation to resolve administrative disputes after the implementation of the new law,the lack of effective relief to the plaintiff in administrative litigation,the independence of the collegialsystem of administrative litigation to be strengthened,and the failure of the court to make full use of the legislative resources provided by the new law to resolve administrative disputes,such as the use of non-litigation methods.Chapter three The function of administrative litigation turns to the internal mechanism of resolving administrative disputes.It is necessary to explore the origin of administrative litigation and the tradition of supervising administrative power,the limitation of administrative power of administrative litigation supervision and its transformation to resolving disputes in essence and the legitimacy of the transformation from function orientation of administrative litigation to resolving disputes in essence in China.It is further considered that the internal reasons for the transition from the function orientation of administrative litigation to the substantive resolution of disputes in China are the limitations of the function orientation of administrative litigation with the supervision of administrative power as the core,the disharmony between the function orientation of judicial supervision administration based on power and tradition and the administrative function of judicial supervision based on separation of powers,the requirement of safeguarding the legitimate rights and interests of the parties and stabilizing the value of social order on the substantive resolution function,the deficiency of judicial supervision ability caused by the limitation of the judicial system in the primary stage of socialism,and the objective influence of the acquaintance society with reason as the core on the construction of the rule of law.Chapter four The establishment of standards for resolving administrative disputes in administrative litigation.From the legal point of view,the function setting and realization path of resolving administrative disputes in essence in administrative litigation must establish its relevant standard on the value setting which is consistent with the whole legal system.In this regard,we should establish its standard on the basis of three principles: the fundamental principle of ensuring the People's interests to the greatest extent,the principle of pluralistic dispute resolution mechanism is the inevitable requirement of substantive administrative dispute resolution,and the principle of maintaining social harmony and stability is the important connotation of substantive administrative dispute resolution.Chapter five The filing stage of three-dimensional degree of resolving administrative disputes in administrative litigation.According to the new law,the substantive solution path of administrative dispute in our country can be divided into two dimensions: administrative reconsideration,diversified dispute resolution mechanism with administrative mediation as the core and court-led administrative litigation.From the process and law of litigation,the whole administrative procedure includes three basic stages: prosecution and acceptance,trial and judgment,execution.Therefore,from the three basic stages of administrative litigation,it is helpful to construct the strict working mechanism and feasible way to resolve administrative disputes.At the same time,it should be mentioned that article 25,paragraph 4,of the Administrative Procedure Law of the people's Republic of China,which came into effect on July 1,2017,stipulates the procuratorial power of the people's procuratorates for ecological environment and resource protection,the right to initiate litigation and the legal supervision power conferred by the Constitution,which can also provide effective supervision system guarantee in the whole litigation process of therealization of the function of substantive resolution of administrative disputes.From the stage of filing,it can be constructed from the legislative purposes such as expanding the scope of accepting cases and lowering the standard of entering into litigation,constructing the third party expert evaluation in the stage of filing administrative disputes as the core of “ pre-litigation evaluation system ” and scientifically promoting the complexity and diversion of administrative dispute cases to enhance the efficiency of administrative litigation.Chapter six The three-dimension aldimension of administrative litigation toresolve administrative disputes.The three-dimensional degree of administrative dispute resolution in administrative litigation is the core procedure of administrative dispute resolution.Based on the needs of this stage,it is guaranteed from the following three dimensions:Comprehensive use of the new law on administrative litigation to resolve administrative disputes,namely,extensive application of administrative litigation summary procedures,trying to use administrative litigation mediation and other alternative dispute resolution mechanisms,application of jurisdiction system to maintain judicial authority to ensure the independence of the court trial and expand the power of the court to enhance judicial authority;To construct the plaintiff's right protection mechanism to resolve administrative disputes in essence,that is,to construct the feasible mechanism of administrative litigation mediation,to strengthen the plaintiff's right relief by using the judge's interpretation right,and to construct the lawyer's compulsory agency system in the administrative litigation;To integrate the supervision path of the defendant to resolve the administrative dispute in the essence of administrative litigation is to optimize the regulation of the new law on the redone of judgment revocation,and to perfect the guidance and standard mechanism of judicial rationality examination to the administration according to law.Chapter seven The three-dimensional execution stage of administrative litigation to resolve administrative disputes.In the three-dimensional aspect of the essence of administrative litigation to resolve administrative disputes,the implementation stage is the last barrier to block the realization of the essence of administrative disputes,but also the difficulty and dilemma.In this regard,the following three ways can be taken to solve the implementation bottleneck of effective administrative judgments,rulings and mediation documents,so as to ensure the effective realization of the legislative purpose of resolving administrative disputes in the essence of administrative litigation in the implementation stage:To construct the value guarantee mechanism for the substantive resolution of administrative disputes in administrative litigation and judicial advice,that is,to define the management subject of judicial advice,to formulate the operation process of judicial advice,to construct the communication and feedback mechanism,etc;To establish the executive mechanism for the administrative resolution mechanism to ensure the substantive resolution of administrative disputes,that is to construct the trial procedure fully negotiated with the administrative organ of the defendant,and to construct the administration of the defendant The decision consultation mechanism fully understood by the organ and the execution mechanism fully cooperated by the defendant's administrative organ should be constructed;The reasonable application and exertion of the crime of refusing to execute the judgment and ruling should form the consensus of “strengthening andimproving the investigation of the crime of refusing to execute”and improve the specific division of labor of the prosecution procedure.