| Article 76 “order the defendant to take remedial measures” of the new Administrative Procedure Law stipulated a new form administrative of judgment,namely,order to remedy judgment.Compared with other types of judgment,order to remedy judgment has not received enough attention from administrative law circle,but there are a lot of cases of order to remedy judgment in judicial practice.The legislative expression of the order to remedy judgment is very vague,and the judicial interpretation is lack of corresponding clarity,which leads to the confusion of the application of the order to remedy judgment in the judicial practice.Whether the court orders the remedy or not,and what kind of order to remedy judgment are very arbitrary.Starting from the legislative provisions of the order to remedy judgment,this paper analyzes the legal basis of the form of the judgment,sorts out the applicable patterns of the order to remedy judgment,and then provides some suggestions for the improvement of the order to remedy judgment to give full play to its effectiveness.The first chapter is the basic introduction of administrative litigation order to remedy judgment.The first section analyzes the expression of the provisions of the order to remedy judgment,aiming to sort out the legal basis of the order to remedy judgment.The second section defines the connotation of the order to remedy judgment on this basis,and concludes that the order to remedy judgment has four characteristics: the form of attachment,the content of performance,the effectiveness of restriction and the limitation of the subject of obligation.The third section discusses the functions of the order to remedy judgment,which has four functions:making up for the incompleteness of confirmatory judgment in solving disputes,realizing the effective relief of the rights of the administrative counterpart,giving full play to the evaluation function of the illegal liability of the administrative judgment and improving litigation efficiency.The second chapter analyzes the legal basis of order to remedy judgment.The order to remedy judgment is made by the court according to faculties and functions,which is ostensibly an "extra litigation judgment",but its existence has certain rationality.The particularity of the relationship between administrative claim and judgment,the requirements of the principle of administration by law,the balance of public interests and personal interests,the unity of judicial justice and litigation efficiency all determine the justification of order to remedy judgment.The third chapter expounds the position of order to remedy judgment in the whole administrative judgment system.The first section clarifies the connotation of order to remedy judgment as a subordinate judgment.The second section analyzes whether the confirmation of illegal judgment,confirmation of invalid judgment and revocation judgment can be the basic judgment of order to remedy judgment.The third section compares the connections and differences between order to remedy judgment and remake judgment,performance judgment,administrative compensation judgment and administrative agreement remedial judgment,so as to has a clear understanding of its position of decision in the whole administrative judgment system.The fourth chapter is the investigation of judicial application of remedial order to remedy judgment.Through the analysis of 169 judgments,we can have a certain understanding of the practical application of order to remedy judgment.First of all,there is a certain mix between order to remedy judgment and performance judgment,administrative compensation judgment and administrative agreement remedial judgment in practice.Secondly,it analyzes the types of cases applicable to order to remedy judgment.Finally,from the form,legal basis of its basic judgment,basis,location,content and time limit of remedial order to remedy judgment,it summarizes the problems existing in the application of order to remedy judgment in judicial practice.The fifth chapter is the perfection of administrative litigation order to remedy judgment.The first section analyzes the applicable conditions of the order to remedy judgment.Only when the three conditions are met: the administrative act sued is confirmed to be illegal or invalid,the administrative act caused damage to the interest of the administrative counterpart or public interest,and the damaged interest has the possibility of remedy,the order to remedy judgment is needed.The second section analyzes the six cases in which the accused administrative act is confirmed to be illegal or invalid one by one,in order to clarify whether it is necessary to make an order to remedy judgment in various cases.The third section is the suggestions to improve the expression of the order to remedy judgment.When making an order to remedy judgment,the court should strictly adhere to the subordinate position of the order to remedy judgment,clarify the content of the remedial measures,and restrict the time limit of the remedy,so as to make the judgment more operable. |
