The Spread Effect Of Administrative Proceeding

The fist article of revised “Administrative Procedure Law” deleted the words “safeguarding” in the sentence “safeguarding and supervising the exercise of administrative powers by administrative organs in accordance with the law”.This amendment makes administrative trial power do not attach to administrative power,which indicates that the function of administrative litigation in china is repositioned.The “Administrative Procedure Law” before the amendment reflected the trend of chaotic authorities and coincidence of function among administrative organs,which leaded to the weakness of judicial supervision.The revised “Administrative Procedure Law” showed the separation between judicial power and administrative mission,and it concerns about the return of judicial subjectivity and strengthening the function of court supervision.Such changes disclosed a vital issue: the separation between “law” and “governance”.This issue means the people’s court should focus on whether the law is respected,instead of whether the administrative mission is completed,and how the separation would come true or head to which direction? The answer was related to the relationship of judiciary and administration.The court does not participate in national governance,but it affects the government substantially,which we call it the spread effect of judicial.The spread effect was the research object in this thesis.The spread effect of judicial will in administrative proceeding,in this paper,aims for achieving government governance and social governance through judiciary in the reform of national governance modernization and in the guidance of settling deputies.At the same time,it also explores the law of formation and expression about judicial will in administrative procedure.This effect is a brand new issue following the law and aiming to realize the modernization of administrative litigation.The theory is innovational,and it makes a breakthrough over the “res judicata” theory which is centered on static sentence.It also extends the research perspective to the whole judicial process.It pays more attention on regulation and guidance of judicial will in every stage of administrative litigation,which includes the spread effect on judicial will in litigation and the effect of regulation-setting.Also,this paper will provide theoretical support for“pre-litigation guidance”,“interimjudgment”,“pre-interpretation” and “judicial suggestion”.At last,this paper is trying to achive the ideal goal of jointnomy by creating more possibilities of settling disputes in theadvantage of system and theory,and by the inspiration that spread effects interests enlighten citizens in administrative proceedings.In addition to the introduction and conclusion,this paper consists of four parts,including the origin and method,the proposing and proving of spread effect of judicial will in administrative proceeding,effectiveness analysis of this effect and discussion on judicial administrative litigation theory system.The first part describes problems and methods.It mainly argued the origin of the effect,and this part also clarifies the judicial process-oriented theory.Meantime,this part will show that judicial process-oriented theory is the basis of spread effect.The second part is proposition and proving.The critical points are analyzing and examining this effect.We should be clear that this theory is not baseless,conversely,it is the outcome of legal transplantation.At the same time,this part will analyze the features and impacts of spread effect both theoretically and in value.Lastly,it will research the difference between the effect and related concepts.The third part is mainly about effectiveness analysis.Actually the purpose is reinforcing the analysis.It mainly clarifies that on which condition the effect would produce.And the condition is that judicial containes four characters,clarity,initiative,acceptability and transparency.The fourth part mainly elaborates the system.In order to settle disputes,this part is back to circumstance in which the effect laid,and to the formation and expression of judicial will in perspective of process theory.This will provide the theory a support to the administrative litigation system,which involves “pre-litigation guidance”,“interim judgment”,“pre-interpretation” and “judicial suggestion”.Finally,under the framework of this theory,this paper also tries to explore foreseeable issues,such as quantitative researching and cogitation of the effect,and how could we maintain this effect.