| The modern state has taken the new goal of providing a wide range of welfare and services for its citizens.In the process of social development,the administrative power has become increasingly specialized and expanded,and is in a stronger position in the administrative litigation.This article,based on the case of Xiangtan Zhifang Brick Factory sue Xiangtan Yuetang District Government of Hunan Province,in which the court repeatedly applied the power for initial judgement to order the administrative organ to make a new decision,which triggered thoughts on the application of the initial judgement power in administrative compensation litigation.In comparison with the United States and Japan,China’s initial judgement theory has been developed for a relatively short period of time,and the study of the first jurisdiction principle in the United States and the initial judgement theory in Japan is conducive to the development and application of the initial judgement theory in China.This article firstly traces and defines the concept of the power for initial judgement and finds the justification behind it,i.e.the judicial power and the administrative power adhere to the boundary of power,the judicial power is passive and neutral in the contemporary state system,and the administrative power presents more active,initiative,professional and strict characteristics in the contemporary society.The article first analyzes the reasons for the abuse of the power for initial judgement in the context of the characteristics of administrative compensation litigation cases.China’s administrative compensation litigation mainly shows the characteristics of diversified compensation subjects,complicated compensation procedures,diversified compensation standards,uncertain and high compensation amount sources,and concentrated dispute focus,etc.As a result,the abuse of the power for initial judgement in administrative compensation cases is mainly manifested in the wrong cases that do not meet the prerequisites for the application of this power,as well as the repeated application of the power for initial judgement by the court in the course of litigation,resulting in circular litigation.The author analyzes the causes of the abuse of the power from various perspectives,including the design of the Chinese system,the courts,the administrative authorities and the actual needs.Finally,the author attempts to propose reasonable restrictions on the application of the initial administrative judgement power from three aspects.At the legal level,the legislation should be strengthened to clarify the scope of protection of the initial judgement power under different circumstances;at the application level,in view of the repeated application of the power for initial judgement by the court to remand,analyze the conditions under which a “remand” judgement “can” be made in the legislation,and at the party relief level,the court’s violation of the power is considered as judicial inaction,and the disciplinary system for the court’s inaction is implemented,so as to give the parties a remedy and include judicial inaction in the scope of state compensation and make the court and its staff responsible for their actions. |
