| Whether the administrative organ assists the court to execute the Act(hereinafter referred to as "Administrative Enforcement Act")is actionable and the determination of the actionable scope has been perplexing the case filing and trial work of the grass-roots court.Since 2004,the Supreme Court has continuously responded to this issue in the form of official reply.In 2018,the interpretation of the Supreme People’s Court on the application of the administrative procedure law of the people’s Republic of China(hereinafter referred to as the interpretation)was promulgated,which uniformly stipulates the actionable standards of administrative enforcement in the form of judicial interpretation,that is,the acts of administrative organs assisting the court in the execution of effective judgments are not subject to cases,However,it is not allowed to expand the scope of implementation or adopt illegal methods in the process of cooperative implementation.Although the judicial interpretation unifies and standardizes the actionable standards of administrative enforcement,with the promotion of the separation mode of adjudication and enforcement,the academic circle has reopened the discussion on the Accountability of administrative enforcement.By querying the judgment documents in recent years,the author found that since its promulgation in 2018,there are still some problems in the practical application of this clause,such as the generalization of legal provisions,the lack of necessary argumentation and unclear applicable standards for specific cases,resulting in different understandings of the facts of the same case between the parties and the court of first instance and second instance in judicial practice,There is confusion in the definition of actionable scope by courts at all levels.The act of administrative coordination involves the division of judicial power and administrative power,which determines the attribute of the act,and the establishment of the standard of the actionable affects the scope of the litigation right of citizens.Consequently,we must start from this clause,clarify the attribute of administrative co execution behavior through theoretical analysis,and on this basis,re sort out the true meaning of this clause in combination with historical interpretation,purpose interpretation and systematic interpretation,clarify the division of administrative power and judicial power in administrative co execution behavior,and clarify the subject of responsibility,In order to alleviate the pressure of difficult execution of the court by improving the enthusiasm of the administrative organ to assist in the execution of the effective judgment of the court.At the same time,through the analysis and summary of practical cases,the provisions on the action-ability of administrative execution in the interpretation are improved and supplemented,so as to provide clearer guidance for the parties and the court receiving the case.This is particularly necessary to solve the practical dilemma of the actionable standard of administrative cooperation.Specifically,this paper will try to discuss from the following parts:The first part starts from typical cases and leads to differences in the determination of whether the same enforcement act can be sued by different courts.After collecting and sorting out more than 700 judgment documents of courts at all levels in Shandong Province since 2012,it is found that the provisions of the proviso to item 7,paragraph 2,Article 1 of the interpretation have not been fully activated and applied.When quoting the provisions,the judgment documents of most courts are generalized,mechanically copy the provisions of the law,lack of necessary argumentation,or there are some phenomena that dare not apply and cannot be applied due to the unclear standards of"expanding the scope of execution" and"taking illegal methods",which leads to the core problem to be discussed in this paper,that is,why is there such a dilemma in practice for the administrative organ to assist the court to determine the actionable standard of the Enforcement Act,and why are there so many differences in the actionable standard.The second part is problem oriented,and analyzes the reasons for the difficulties and differences in the actionable standard,mainly due to:first,the provisions on the Action-ability of administrative cooperative execution have changed greatly,resulting in the confusion of the legal basis;Second,the boundary of administrative execution is not clear,which makes some acts excluded from the scope of administrative execution cases;Third,it is unclear whether the legal assistance obligation can be used as a non actionable reason,resulting in a large number of court decisions directly excluding the administrative execution act from the scope of accepting the case on the grounds of "legal assistance obligation";Fourth,there are still differences on the nature and logic of administrative co execution.Administrative acts can be sued,but judicial acts cannot be sued.If the nature of administrative execution is unclear,it is difficult to clarify the actionable standard;Fifth,there are imperfections in Item 7,paragraph 2,Article 1 of the interpretation.However,some standards in the book are unclear and there are no provisions on some situations,such as the unclear definition of "scope" in "expanding the scope of implementation",the dispute over "illegality" in"adopting illegal methods",and the possible situations that administrative organs"narrow the scope of assistance in implementation" and "incomplete performance" in the process of assistance in implementation in judicial practice are not involved.The third part looks for a way out according to the reasons of the dilemma.The first way out is to answer the qualitative question of administrative execution.Theoretically,it is demonstrated from the perspective of the elements of the establishment of administrative act,the theory of scope and will,the theory of principal-agent and the theory of practical influence,That is,the assistance act carried out by the administrative organ in accordance with the court assistance document is a judicial act and is not subject to the case.On the contrary,if the administrative assistance act exceeds its authority and is carried out in an illegal way,the excess or illegal part reflects the will of the administrative organ.At this time,it is an administrative act and can be subject to judicial review.The fourth part continues to explore the way out of the dilemma,tries to supplement and improve the provisions of item 7,paragraph 2,Article 1 of the interpretation,clarify the standards and make up the deficiencies.Firstly,combined with judicial cases,define the "scope"of "expanding the scope of implementation",and clarify the judgment standard of "using illegal methods".For "narrowing the scope of implementation" and "incomplete performance",which are not mentioned in the proviso of item 7,they are supplemented by analogy.In addition,the exclusion of administrative execution from the scope of accepting the case also means the disappearance of the litigant’s right of action.Based on the principle that there is damage,there must be relief,we should also provide relief for the injured party.At the same time,in order to prevent the wanton expansion of judicial power from infringing on administrative power and mobilize the enthusiasm of administrative assistance,we should learn from the provisions of administrative assistance at home and abroad to improve the relief to administrative organs. |
