On The Relationship Between Executive Power And Jurisdiction

Today, a lot more countries are under the rule of law or on the way toward the road. As a constitutional state, the configuration between executive power and judicial power is of great importance. The reasonable relationship between the two conforms to the trend of social development, and is also an important foundation to protect the rights of citizens. China’s Constitution and the Administrative Procedure Law has the relevant provisions on the relationship, however, there is little specific executable norms and many shortcomings and ambiguity. Moreover, since the founding of PRC, administrative power is dominant, and judicial power was marginalized in the most time. Although, in recent years, our law has repeatedly has emphasized the authority of the jurisdiction, offer more and more protection for the exercise of jurisdiction, but very slow. How to configure for the executive power and judicial power? National authorities and scholars have different views. Therefore, this article intervenes the relationship between executive power and judicial power through analyzing a case, then combs it and put forward a some proposal.Besides the preface and conclusion, the body has three parts, totaling more than30,000words.The first part describes the approximate circumstances of the case.First, the article reviews the cases the causes, process and results, to observe the reflection of the whole community on the case. Then, points out legal issues in it, and uncover the veil between administrative power and judicial power.The second part analyzes the controversies of case in detail. First of all, analyzes the ownership of mineral resources, the nature of the case, and whether the "mining licenses" should be withdrawn or not on an objective point, which are the prerequisites for the cases after treatment and results. Secondly, analyses the rationality and effectiveness of judgment from Yulin City Intermediate People court, and points out that the judgment of a people court should be respected and implemented. Finally, evaluate the attitude of the Shanxi Provincial Department treating the judgment, and offer the legal relief ways if Shanxi Provincial Department refuse to accept judgment.The third part elaborates our present administrative power’s and judicial power’s situation, the historical reasons and the advantages and disadvantages, and puts forward proposals for reforming. First of all, review the history of the relationship between executive power and judicial power and points out the existing major problems:executive power is above the top of the jurisdiction. Secondly, the forming reasons of the status are analyzed through the following four aspects the historical status, the basic national policy of economic development, administrative legislation for basis of administrative litigation judgment, and jurisdiction depending on administrative rights Again, analyze existing pros and cons from two angles of the executive power overriding the jurisdiction and jurisdiction beyond executive power, indicating that drawbacks would be brought no matter who take precedence over the other. Finally, some proposals are supplied for reform of the executive power and judicial power in the future in the next three aspects:ensuring the independence of judicial power, strengthening the supervision over administrative power, and respecting judicial power. The third part is also the key point of this article.