On Judicial Path Concerning Dispute Of Authority Between The Local Government Functional Department

Government functional department is an important part of the rule-of-law government. Inaccordance with the Constitution and relevant legal provisions, each department which hasclear scope of authority performs its own functions, holds administrative ecological system,and pushes the construction of legal system of our country forward. However, the localgovernment’s authority is not clear, and the duties between them areunknown.Multi-management, cross enforcement always happen."Have profit to get, have noprofit to shirk”, this is the bottleneck of rule-of-law government.At present stage, the status quo of our country solve the dispute between localgovernment functional department is that the legislative path and administrative path havecongenital deficiency. There is no judicial path. The legislation is disperse and various, evenmulti-levels of legislation subjects. And starting the program of legislative is complex. Allresult to the dispute can not timely and objectively resolve. What’s more, the upperdepartment handle the dispute is subjective, arbitrary. The existing administrative path is hardto avoid the suspicion of “do the judge”. We never have judicial path to solve the disputes ofauthority administrative. Through examining the present, legislative path and administrativepath have some positive effects to solve the disputes. But in some degree it can’t solve thedisputes objectively, fairly and timely.The lack of judicial path is a regret of the disputesettlement mechanism of our country’s jurisdiction. It is an opportunity for our country tointroduce authority litigation to solve disputes between functional departments.Foreign, Taiwan and Macao provide a reference for us in dealing with how to solve thedisputes between the authorities of local government functional department. For example,Japanese authorities litigation, German agency action, French over-rides lawsuit and so on.They have a common characteristic that following the principles of exceeding authority isinvalid and through the resort to judicial way to solve the disputes objectively, maintenancelaw order, and protect the administrative counterpart’s right and interest.The transplantation of dispute solution need combine with China’s socialist rule of law.The administrative litigation law in China is aim at to resolve the dispute substantively,maintain the administrative counterpart legal rights. It’s helpful to bring the conflicts that thelegislative and administrative path can not resolve to the scope of administrative litigation.This paper mainly uses the case analysis, comparative research, normative analysismethod and so on. In response to the need of the diversified mechanism of dispute resolution, we should expand the scope of the administrative litigation, extensive administrative legalrelationship to construct authority litigation that can resolve the dispute between localgovernment functional departments.