| With the entering of a new era of socialism with Chinese characteristics,the people’s awareness of rights has accelerated,and they are more eager for the effectiveness of litigation relief.Therefore,the theory of litigation relief has become the focus of more attention in the field of legal theory.Compared with civil lawsuits,administrative lawsuits adjusted by public law have special features such as the fact that the administrative organ is always the defendant,the litigation status of both parties is poor,and the restrictions on public power are involved.The disadvantages of litigation that lead to complicated administrative proceedings and a long time to make a final judgment are more prominent.Therefore,scholars of administrative law have gradually focused their attention on the effectiveness of the protection of rights in administrative proceedings,and discussed the "stop enforcement system" As the starting point of the research,a lot of theoretical results have been obtained.Since then,some scholars have further proposed that the "stop execution system" is not sufficient to provide parties with a full range of effective rights protection.They believe that the research content and scope should be expanded.Litigation preservation procedures and pre-enforcement systems have gradually entered the research horizon of the relevant theoretical systems of administrative litigation law,and on this basis,extended the theory of temporary rights protection.As one of the components of temporary rights protection theory,the administrative litigation preservation procedure has played an important role in filling the legal protection loopholes brought to the parties due to judicial reality and other reasons.However,the administrative litigation preservation procedure in China’s mainland still exists Many problems,one is that it has not risen to the height of the Administrative Procedure Law.Only the Supreme People’s Court in force on February 8,2019,applied the interpretation of Article 76 of the Administrative Procedure Law of the People’s Republic of China to provide protection.There are problems such as the disorder of legal provisions,neglecting the particularities of property preservation and behavior preservation,confusing administrative litigation preservation with other preservation procedures and related concepts,inconsistent judicial review standards,and single safeguard and remedy measures.Research and discussion: After the temporary rights protection system was incorporated,the discussion on the protection of temporary rights in administrative litigation came to an end.There was no in-depth study of administrative litigation preservation procedures like the discussion of the "stop enforcement system".Third,there is a lack of practice on property preservation,For the preservation of judicial practice.The existence of these problems makes the administrative litigation preservation procedure in China’s mainland region virtually useless and does not play the fundamental role of litigation relief.In contrast,China ’s Taiwan region and developed countries with extra-territorial rule of law,such as Germany and Japan,have a certain depth and breadth of research on administrative litigation preservation procedures at the legislative and theoretical level.Legislation needs to be improved urgently,and there are many problems in the theoretical world that need to be further clarified.This article attempts to make a reasonable reference and reference to the advanced experience formed in administrative litigation preservation procedures in other countries and Taiwan in China through comparative analysis and research methods.Based on China’s reality,it is proposed that the pursuit of human rights protection should be the core concept of administrative litigation.And follow the path of thinking from legislative definition to judicial discretion: one is to improve the existing administrative litigation preservation procedures and introduce legislation;the other is to theoretically clarify the basic types of administrative litigation preservation procedures and how administrative litigation preservation is related to other preservation procedures and related The difference in concepts;the third is to design specific systems for the start,operation,and relief of procedures to try to improve the construction of administrative litigation preservation procedures in China,in order to provide useful references for the further improvement of China’s administrative litigation law system. |
