Research On Judgment Of Plaintiff’s Qualification Of Creditor In Administrative Litigation

The distinct frame of public and private dualism is no longer enough to cope with the social reality.The role of "state" in private law is increasingly concerned,and the influence of the intervention of public power on the rights and obligations of civil subjects in administrative law research also needs attention.The more direct question is whether and how administrative litigation can provide right relief to the subject of civil legal relations.Creditor’s rights relief is generally under private law to solve problems,and in the stipulated in article 13 lines of v.the creditors may institute an administrative lawsuit in special cases,clarify the creditors of plaintiff qualification in administrative litigation judgment standard,and tries to creditors in the study of the plaintiff qualification in administrative litigation,administrative procedure law and civil law look across studies department law doctrine.Article 13 of the Interpretation of Action is still a detailed provision for special subjects under Article 25 of the Administrative Procedure Law.Therefore,the judgment of creditors should be based on the judgment of the administrative Procedure Law and academic theory on the plaintiff qualification of interested parties.In general,there are two analysis schemes for the judgment of plaintiff’s qualification in administrative litigation in China: first,the interpretation of "interest" in administrative Procedure Law,and in practice,the interpretation and application of "interest" from two perspectives--"interest" and "legitimate rights and interests".Second,the introduction of "protection norm theory" outside the region,through legal interpretation to identify the subjective public rights to judge the administrative litigation plaintiff qualification.The difference is that the former aims to limit the concept of interest with broad meaning,emphasizing the legal interest,direct interest,legal rights and interests and legal causality.The latter gradually relaxes the legal requirements of protection norms by changing legal interpretation methods and putting forward rules of "considering requirements".Article 13 of the Interpretation of Action provides detailed provisions on the qualification of the creditor as plaintiff,in which the proviso stipulates that "except those which should be protected or taken into consideration by the administrative organ when it conducts an administrative act",that is to say,the creditor should have the qualification of plaintiff in administrative action under certain conditions.Through analyzing judicial precedents,the following five situations are summarized :(1)creditors have trust interest in administrative acts;(2)the administrative organ has the statutory duty to protect or take into account the interests of creditors;(3)the administrative organ and the counterpart agree to terminate the administrative agreement;(4)an effective judgment has made a factual determination on the realization of the creditor’s right;(5)Private law provides insufficient relief to creditor’s rights.The four cases are analyzed with the help of the existing theoretical framework and the judgment of the plaintiff’s qualification of the creditor is still carried out under this framework.To be specific,first,the judgment of the plaintiff’s qualification still belongs to the judgment framework of the protection norm theory in the case of the establishment of reliance interest and the existence of statutory protection or duty of consideration.If there is a protected trust interest,it is based on the stability of law and has the attribute of subjective right.Where laws,regulations,rules or normative documents stipulate the protection or consideration obligation for creditors,the creditor’s right can be transformed into subjective public right due to the existence of objective law pointing to individual interests.Second,the situation of consensual rescission of administrative agreement and binding of prior effective judgment satisfies the interpretation that administrative act has an interest relationship with creditors.In the dispute of the consensual cancellation of administrative agreement,the "consensual cancellation" of both parties leads to the loss of guarantee of the realization of creditor’s rights,and the overall change of administrative agreement is directly related to the damage of the realization of creditor’s rights.If there is an earlier effective judgment,the effective judgment confirms the measures taken by the creditor to guarantee the realization of creditor’s rights.If the administrative act fails to protect or consider the interests of the creditor,there is a causal relationship between the realization of creditor’s rights and the administrative act.However,in the case of insufficient relief in private law,the judgment of "narrow interest in litigation" should be moved forward to the judgment process of plaintiff’s qualification."Interests of litigation in narrow sense" focuses on the necessity and effectiveness of administrative litigation.In the case of insufficient relief in private law,on the one hand,the creditor’s interests independent of the civil legal relationship need to be protected,and on the other hand,civil judgment cannot eliminate the effectiveness of administrative action.In these two cases,administrative litigation has the benefit of litigation,that is,the interest of litigation.Compared with ordinary interested parties,the creditor is in another civil legal relationship,and the civil remedy approach is often more direct to the right relief.In order to confirm the plaintiff’s qualification in administrative litigation,it is necessary to negate the effectiveness of the right to guarantee civil relief.Inspired by the active formation of interest in litigation,the judgment of interest in litigation forward in the judgment of plaintiff’s qualification provides an auxiliary role in shaping the existing judgment framework.On the one hand,the positive function of litigation interests emphasizes that it can promote the formation of new rights and provide help for the formation of subjective public rights.On the other hand,the benefits of litigation can strengthen the formation of "actual influence",and the fact judgment of whether the effectiveness of litigation exists expands the capacity of "actual influence" to factual factors.On the whole,through the concept of interest in litigation,the effect of the facts on the interested parties is transformed into the framework of judgment of plaintiff’s qualification,so that it can enter the vision of judgment and play a role in judgment.