Research On Judicial Proposal System In Administrative Litigation In China

In recent years,with the diversification of social contradictions and disputes,the people’s courts are endeavoring to break through the traditional adjudication model and explore a way to participate in social governance by means of the creative judicial advisory system of administrative litigation.Based on the judicial practice with Chinese characteristics,this system has made great contributions to resolving administrative disputes and unifying the legal and social effects of administrative cases.Although it has been thirty years since the introduction of Administrative Procedure Law of the People’s Republic of China,the judicial advisory system of administrative litigation is still at the stage of exploration.During this period,the judicial advisory system has been through up and down in academia.Therefore,not only the theoretical basis of the judicial advisory system and the problems exposed in the course of judicial practice need to be dealt with,the improvement of the judicial advisory system of administrative litigation also deserves our attention.In response to the above-mentioned problems,this thesis sorts out the basic connotation,functional positioning and effectiveness attributes of the judicial advisory system of administrative litigation,presents the current situations of legislation and judicial practice,analyzes the causes of the problems,and as a result,puts forward countermeasures to improve the judicial advisory system of administrative litigation.From the perspective of the connotation of the judicial advisory system of administrative litigation,there is no clear definition in this field.In accordance with the opinions of relevant scholars,this thesis creatively proposes the connotation of the judicial advisory system of administrative litigation from the perspective of constituent elements.Meanwhile,from the perspective of functional positioning,the prevention function,dispute resolving function and indirect supervision function of the judicial advisory system of administrative litigation are clarified.In addition,with regard to the effectiveness attribute of judicial advice,this thesis conducts a theoretical review of existing researches,and clearly proposes the introduction of soft law theory to position the effectiveness of judicial advice as "soft mandatory force" to solve the current problem of unknown effectiveness attribute.On the basis of the explanation of the basic theory and the adoption of the method of data analysis,this thesis studies the current situations of the legislative and judicial practice,ascertains the inadequacy,slow feedback and varied quality of current judicial advice of courts at all levels and attributes the reasons to lack of legitimacy,standardization and openness.On this basis,this thesis proposes a specific idea to improve the judicial advisory system of administrative litigation.First of all,it is necessary to begin with legal norms,namely the top-level design,and solve the problems exposed by the judicial advisory system by strengthening the legal basis,clarifying the legal attributes,and setting up legal responsibilities.Second,we shall standardize the operating procedures of the judicial advisory system of administrative litigation,strengthen the linkage mechanism between the people ’s courts and administrative apparatus,adopt prior communication,post-supervision and feedback,and set up a certain assessment and rewarding system to solve the problems in judicial practice.Finally,we endeavor to build an open mechanism for the judicial advisory system of administrative litigation.By clarifying the scope of the judicial advisory system and structuring the judicial advisory disclosure network at a technical level,we will lay emphasis on the selection and demonstration of excellent administrative litigation judicial advisory documents and other methods to create an open platform for the system,thus ensuring the public supervision of the system.