Judicial Review Of Administrative Compulsory Substitute Performance Cases

Since the implementation of the "Administrative Compulsory Law",the litigation cases involving administrative compulsory substitution has been on the rise,and the judicial review practice has presented the inconsistent review of its legal elements,the confusion of the scope of the recovery of the costs of substitution,the administrative substitution of tort liability for tort damages and other issues.This is not only the dilemma that the people’s courts have to face when hearing administrative compulsory substitution cases,but also the embodiment of the many loopholes and defects of the administrative compulsory substitution system,involving the normative level and law enforcement level.However,as the last line of defense to maintain social justice,the judicial trial is often the most focused to reflect the crux of the problem.The purpose is to optimize and improve the judicial review of administrative compulsory performance cases.In addition to the introduction and concluding remarks,the text is divided into three parts,with more than 30,000 words.The first part is a classification of the judicial cases related to administrative compulsory substitution.The focus of the dispute in each of the three types of cases is different.First of all,for the case type of reviewing the legality of the administrative compulsory substitution,there are differences of opinion among the people’s courts in reviewing the authority element and procedural element of the administrative compulsory substitution;secondly,for the case type of disputes over the payment of expenses of administrative compulsory substitution,there are differences of opinion among the people’s courts in judging whether the cases of administrative compulsory substitution can be included in the scope of civil litigation;finally,for the case type of Lastly,the People’s Courts have disputes in determining the appropriate defendants for the compensation lawsuits arising from the illegal administrative compulsory substitution.In the second part,the traceability and analysis of the controversial focus of judicial review.The first is the review of the elements of authority,from the retroactive source of administrative compulsory performance of the universal authorization,to explore the boundary of the universal authorization,judicial review practice should accurately grasp the scope of the subject of the universal authorization,the scope of application and the restrictions on the exercise of authority;for the review of the procedural elements,from the legal procedures of the various stages of performance,to clarify the procedural interface between the various stages and the legal effects of each procedure The second is the payment of costs in lieu of performance.Secondly,we analyze the legal nature of the payment in lieu of performance,and clarify that it is a mixed claim with both public and private law attributes,so the recovery of administrative compulsory payment in lieu of performance should be based on the principle of application for court enforcement by administrative organs,with the exception of civil litigation between the parties and the third party in lieu of performance.Finally,the court needs to clarify that the legal relationship between the administrative organ and the entrusted third party is in line with the characteristics of the administrative agreement with dual attributes of public and private law,so as to clarify the rules for the allocation of liability in cases of tort damages in lieu of performance,in order to correspond to the subject of compensation.In the third part,The direction and conclusion of the trial of the controversial focus of the judicial review.For the case type one of reviewing the legality element of the act of substitute performance,the judicial review of this type of case should be improved from two aspects of authority element and procedural element.For type two cases of payment in lieu of performance,the plaintiff’s qualification and applicable enforcement procedures should be reviewed by distinguishing between general performance in lieu of performance and immediate performance in lieu of performance.For the compensation lawsuits arising from the third type of administrative compulsory substitution,the court should fully include them into the scope of administrative compensation lawsuits,and find that the administrative organ is the constant and appropriate subject of compensation in such lawsuits.The fourth part is to optimize the judicial review of administrative compulsory substitution.From two perspectives: the improvement of judicial norms and the improvement of the system of substitute performance,we propose the optimization.In the improvement of judicial norms,the judicial review of administrative compulsory substitution is optimized through the issuance of guiding cases or relevant judicial interpretations by judicial organs.Firstly,it is suggested to clarify that the substituted performance is generally not applicable to the judicial review of compulsory demolition of buildings,structures and facilities;secondly,it is suggested that the judicial authority should clarify the scope of the case to which the substituted performance costs are paid,and establish the principle of applying for court execution by the administrative organ and the exception of civil litigation as the means of recovery of the substituted performance costs,and at the same time,improve the recognition of the administrative agreement in the form of judicial interpretation,so that the Finally,it is suggested that the judicial interpretation of the State Compensation Law should improve the rules for determining the subject of compensation for tort damages in lieu of performance.In terms of the improvement of the substitute performance system,on the basis of summarizing the judicial practice experience of substitute performance cases,we propose to improve the loopholes of the system found in judicial practice,such as the procedure of selecting the third party for substitute performance and the rough fee standard,and the disputes that may easily arise when implementing immediate substitute performance,so as to solve the disputes that can be prevented and avoided from the source.