Study Of The Judicial Judgment Of Remaking Administrative Act

Judgment of remaking administrative act is also known as re-judgment. As a kind of statutory sentence, it has been prescribed in the Chinese "Administrative Procedural Law" for a long time. According to the item(2) of article 54 of the "Administrative Procedural Law" applied in 1990: "in case of any insufficient evidence, mistakes of applicable laws and regulations, violation of legal procedure, exceeding and abuse of authority existing in specific administrative act, the decision should be canceled or partially canceled, or make the judgment of ordering the defendant to remake specific administrative act". The article 70 in the "Administrative Procedural Law" newly revised in 2014, has added "obvious impropriety” as the legal situation for the cancellation of administrative act on the basis of the original provisions. Re-judgment has certain effects in supervising the administrative organs to govern in accordance with the law and protecting the legal rights and interests of the other party, but in the judicial practice it has caused a lot of conflicts and disputes: some courts hesitates to order the administrative organs to make re-judgment after making the decision of canceling the administrative act of the defendant, namely misunderstanding the applicable standards of re-judgment; although some court s may make the decision of re-judgment, the prosecuted administrative organ will make "no re-judgment" or make "re-judgment at random", and sometimes even the strange circle of administrative proceeding, "canceling-rejudging-canceling-rejudging", will appears; moreover some courts have not made clear the time limit and content of re-judgment. Thus, a series of problems such as what is re-judgment, when should it be made, what are the standards and how to regulate and relieve the illegal re-judgment are worthy of investigation.The administrative act remade by the administrative organs whether under the situation that the administrative organs are ordered to rejudge, the situation that the agency of administrative reconsideration makes the decision of re-judgment or the situation that the administrative organs rejudge voluntarily, should not be at will. "re-judgment" contains five meanings: the first meaning is that the original fact that the administrative action is illegal is denied, which is the precondition of re-judgment; the second meaning is that the administrative organ has the duty to rejudge; the third meaning is that re-judgment is necessary and possible. The necessity is necessary for the settlement of administrative disputes and the possibility is the probability of correcting illegal act; the fourth meaning is to reconsider the administrative dispute, which is the content of re-judgment; the fifth meaning is that the re-judgment should be conducted in accordance with the purpose of judgment.On the basis of a clear definition of connotation, the paper broadens the vision to whole world to explore whether the problems existing in the field of re-judgment belong to "China" or the "world", or whether there is any related or similar system out of China? There are some representative cases including: the specification model, "the abatement order attached with the content of the re-judgment" in Britain and the specification model "Binding Force of re-Judgment" in Japan and Taiwan. All these specification models can provide useful reference for China. At present, China adopts the specification model, "canceling the judgment" combining with "no repeat”. Although it cannot completely solve the legal issues left by canceling the judgment, it has the special system functions of urging the administrative organ to fulfill the duty of re-judgment and embody the litigation economy and the efficiency of lawsuit. t present, under the environment of the operation of administrative litigation system in China, the specification model, re-judgment, is the optimal choice.The ultimate goal of all researches is that the theoretical study can most effectively respond to practice, and thus provide operational rules for the judicial practice. To make the administrative organs remake legal and reasonable administrative act, it is suggested to implement the following improvements of the re-judgment mode: establish the applicable rules of re-judgment, establish the censorship pattern focusing on the illegal causes; refine the content of re-judgment including the specification of the re-judgment deadline and main body of re-judgment; complete the relief way for illegal re-judgment including afterwards relief and beforehand prevention. The former is the implementation of article 96 of the new "Administrative Procedural Law", and the latter is the "revenge" mainly aiming at the illegal re-judgment of the administrative organs in accordance with the functions and powers. It is applicable to supplementary prohibition of re-judgment; make fundamental adjustment of the system structure of re-judgment and determine that the confirmed illegal judgment can also be the main decision of re-judgment in special cases.