Reflections on the establishment of administrative incidental civil litigation system
Published:
2010-02-02
Summary:in judicial practice,There are a large number of cases of administrative and civil disputes, but due to the lack of relevant legal norms and operational level in our country, the trial practice is facing many difficulties, resulting in low efficiency of litigation, inconsistent judgments, and protracted cases. Therefore, the administrative incidental civil litigation system should be established as soon as possible in order to provide a more specific operational basis for judicial practice.
Key words:administrative incidental civil action; administrative dispute; civil dispute
Reflections on 1. cases
In real life, there are a large number of civil disputes involving specific administrative acts of administrative organs. Due to the imperfection of relevant laws and litigation mechanisms, the parties do not know how to choose procedures to resolve disputes. Let's look at the following case: in August 2005, a applied to a district planning department for housing expansion, and the planning department approved a's application after examination. April 2006 A in the original housing on the basis of construction and expansion, and completed in October of the same year. After the completion of the project, Party B believed that the expanded house affected its ventilation and lighting rights and demanded compensation for the losses. Party A reported that it had been approved by the administrative department and acted legally, and took out all the approval procedures to prove it. So B litigation for this matter to the people's court, seeking judicial relief. But should he bring a civil suit, or an administrative suit? For such cases involving administrative disputes and civil disputes, there are no clear and specific provisions in China's Administrative Procedure Law and Civil Procedure Law. Article 61 of the 1999 Interpretation of the Supreme People's Court on Several Issues Concerning the Implementation of the the People's Republic of China Administrative Procedure Law stipulates: "It is illegal for the defendant to make a ruling on a civil dispute between equal civil subjects, and the parties to the civil dispute request the people's court to resolve the relevant civil dispute together, the people's court may hear the case together." The provisions of the judicial interpretation only provide for the merger of the courts in the case of administrative rulings, the scope is very narrow, the operation is not strong. More importantly, the article uses the term "trial together" instead of the term "administrative incidental civil action". Therefore, it can be said that the administrative incidental civil action and related procedures discussed in the academic circles have not been recognized by the highest judicial organ.[1]The so-called administrative incidental civil litigation refers to the litigation activities in which the people's court, while trying administrative cases, tries civil cases related to administrative cases and makes a ruling. In the above-mentioned cases, there is a cross between administrative legal relations and civil legal relations, which makes the originally simple cases can not be solved well when the law is blank, and the legitimate rights and interests of administrative counterparts can not be protected in a timely and effective manner. Therefore, it is a very important and urgent problem to find a way to solve such cases in line with China's national conditions.
2. the Practical Feasibility of Establishing the System of Administrative Incidental Civil Action in China
1. With the changes in the functions of administrative departments in China and the acceleration of the pace of legislation in China, a large number of administrative laws, regulations and rules have given administrative organs the right to resolve civil disputes in accordance with their administrative functions and powers, and it has become the legal right of the parties to file an administrative lawsuit if they are not satisfied with the administrative treatment. Based on the principle of maximizing benefits, the people's courts make rulings on related civil disputes while trying administrative cases, which is consistent with the spirit of our country's legislation and the principle of judicial final relief. Administrative incidental civil litigation not only will not cause the people's court to exercise judicial power to interfere with the administrative organs in the exercise of administrative functions and powers, but also can supervise the administrative organs in accordance with the law.
2. China's current criminal incidental civil litigation system provides theoretical and practical experience support for the establishment of the administrative incidental civil litigation system. First of all, theoretically, from the basic theory of criminal incidental civil litigation, it can be inferred that in administrative litigation incidental civil litigation, incidental civil disputes should be directly caused by specific administrative acts, and this indivisibility between civil disputes and specific administrative acts determines the incidental nature between civil litigation and administrative litigation. Secondly, in practice, the criminal incidental civil action has received the effect of litigation economy and judgment determination, and has accumulated rich experience, so that the two lawsuits are coordinated. The characteristics and advantages of this incidental action can be used for reference by the administrative incidental civil action.
Basic Principles of 3. Administrative Incidental Civil Action
Due to the particularity of the administrative incidental civil litigation system, in addition to the original principles of administrative litigation and civil litigation, the administrative incidental civil litigation system also has the following unique principles:
1, respect the principle of the right of the parties to sue.
In administrative incidental civil litigation, the court should respect the parties' right to choose whether to file an incidental civil action. Only when the parties are not satisfied with the specific administrative actions of the administrative agency, but also file a lawsuit against the civil dispute, the people's court can pass the combined trial. Resolve the administrative and civil disputes of the parties. This is the embodiment of the principle of "no complaint" in the administrative incidental civil action. Of course, the prerequisite for the parties to use this option is that the associated administrative dispute and civil dispute meet the conditions of administrative incidental civil action and can be used incidental. If the parties to the administrative litigation do not file an incidental civil claim in the course of the administrative litigation, the court cannot take the initiative to hear the civil dispute and make a judgment according to its authority, but can only make a judgment on the administrative dispute. If, in the process of filing and accepting or hearing an administrative litigation case, the people's court finds that other conditions for administrative incidental civil litigation are met, it shall inform the parties that they have the right to file an incidental civil action, and if the parties who have the right to file an incidental civil action give up their litigation rights, it shall be allowed.
2. The principle of limited application.
The principle of limited application means that the scope of application of incidental civil litigation in administrative litigation should be limited, and all cases involving administrative disputes and civil disputes should not be used in administrative incidental civil litigation. This procedure can only be applied to cases that meet the conditions of administrative incidental civil action and meet the purpose of establishing administrative incidental civil action.
3, the first administrative after the civil principle.
In the case of administrative incidental civil litigation, administrative litigation is the chief complaint, and the settlement of administrative disputes constitutes a prerequisite for the settlement of civil disputes. Therefore, we must adhere to the principle of first and then the people, that is, to judge the legality of administrative disputes before resolving civil disputes.
The Scope of Accepting 4. Administrative Incidental Civil Action
The scope of the case of administrative incidental civil action, due to different legal systems, some countries are regulated by law, and some countries are determined by court precedents, and the scope is not consistent. The academic circles have quite different opinions on the scope of accepting cases of administrative incidental civil litigation in China, and their views are mainly as follows: the first view is that administrative incidental civil litigation includes three kinds of cases of administrative punishment, and the lawsuit filed against the administrative ruling should not be an administrative incidental civil action, but a special kind of administrative litigation.[2]. The second view is that administrative incidental civil litigation includes both administrative penalties and administrative rulings.[3]. The third view is that disputes arising from the issuance of warrants by administrative agencies and administrative disputes arising from administrative rulings are resolved by administrative incidental civil litigation procedures, and only administrative incidental civil litigation can be applied to administrative penalty cases.[4]. The fourth point of view is that administrative incidental civil litigation includes the following situations: 1) litigation against administrative confirmation behavior; 2) litigation against administrative adjudication behavior; 3) there are administrative punishment cases of victims of civil tort; 4) when the administrative counterpart carries out some kind of behavior permitted by the administrative organ, the third party thinks that it infringes its own civil rights and interests, in the process of filing administrative proceedings by a third party, the court is required to resolve civil disputes incidentally.[5]
Whether the specific case is applicable to the administrative incidental civil litigation procedure should be based on the relevance of administrative litigation and civil litigation, and the principle of maximizing benefits should be comprehensively considered to be strictly defined. Combined with China's specific national conditions and judicial practice, the scope of administrative acts applicable to administrative incidental civil litigation is as follows:
1, the administrative confirmation act is not satisfied with the lawsuit.
Administrative confirmation refers to the specific administrative act in which the administrative subject screens the legal status, legal relationship or relevant legal facts of the administrative counterpart in accordance with the law, and gives a specific administrative act to determine, identify, prove (or negate) and declare it.[6]For example, the administrative act of housing property registration, the registration management authority generally only conducts a formal review of the registration application, which may cause the owner of the property registered with the house ownership certificate to be inconsistent with the actual owner, which leads to the corresponding administrative litigation and civil litigation. In judicial practice, disputes caused by the issuance of warrants by administrative agencies and lawsuits filed against administrative confirmation are often based on civil disputes between the parties. Its main purpose is to resolve civil disputes between the parties. While the court is trying the legality of administrative actions, it must involve civil disputes between the parties and judge civil disputes.
2, the existence of civil tort victims of administrative punishment cases.[7]
The most common in administrative litigation is the case of administrative punishment, but not all administrative punishment cases must be solved by the way of administrative incidental civil litigation. Only the administrative punishment cases of tort victims should be handled by the way of administrative incidental civil litigation. In such cases, the infringer's behavior not only violates the relevant administrative laws and regulations, but also constitutes a civil tort, so he should bear both administrative responsibility and civil liability, which are caused by the same behavior.
3. A lawsuit against an administrative ruling.
Administrative adjudication refers to the administrative act of the legal administrative organ to adjudicate civil disputes between the parties in a certain field that is closely related to administrative management. The administrative adjudication act has the nature of quasi-judicial act, which is different from the general administrative act. It must be based on the existence of civil disputes. It is a common administrative act that is easy to cause administrative disputes and civil disputes to coexist. In such cases, the essence of the party's administrative litigation to correct the administrative ruling of the administrative organ is to satisfy the plaintiff's civil claim. The resulting administrative litigation and civil litigation are intrinsically related, and the settlement of civil disputes is inseparable from the settlement of administrative disputes.
4. When a party carries out a certain act permitted by the administrative organ, the third party thinks that it has infringed on its own civil rights and interests, and the party files an administrative lawsuit and at the same time requests to resolve the civil dispute.
An administrative licensing act refers to an act in which an administrative organ, upon the application of a citizen, legal person, or other organization, approves it to engage in specific activities after examination in accordance with the law. Not all administrative licensing cases can be applied to administrative incidental civil litigation, only when the administrative counterpart implements a certain act licensed by the administrative agency, and the third party believes that it infringes on its legal civil rights and interests in the process of filing an administrative lawsuit with the court and requires the incidental settlement of the civil dispute, Can be applied.
Trial of 5. Administrative Incidental Civil Litigation and Related Issues
First of all, with regard to the parties to administrative incidental civil litigation, the parties to civil litigation should be defined as the subjects of both parties to civil disputes, and the plaintiff of administrative litigation may be either the plaintiff of incidental civil litigation or the defendant of incidental civil litigation. It should be noted that the administrative organ cannot be a party to incidental civil litigation, because the administrative organ is not the subject of civil disputes.
Secondly, one of the purposes of establishing the administrative incidental civil litigation system is to save judicial costs and improve the efficiency of litigation, and the determination of the jurisdiction court of administrative incidental civil litigation is very important in the trial of administrative incidental civil litigation cases. According to the theory of jurisdiction and the provisions of the law of our country, the incidental civil action and the administrative action itself should be under the jurisdiction of the same court. The principle of jurisdiction in administrative litigation is under the jurisdiction of the court in the place where the administrative organ that originally made the specific administrative act is located, and if the reconsideration organ of the reconsideration case changes the original specific administrative act, it can also be under the jurisdiction of the court in the place where the reconsideration organ is located, while the general principle of jurisdiction in civil litigation is "the plaintiff is the defendant". The question is: how to choose a court of jurisdiction when the defendant in an incidental civil action is different from the location of the administrative organ or the reconsideration organ that originally made the specific administrative act? And in practice, there are a large number of cases where the domicile of the defendant in an incidental civil action is inconsistent with the location of the administrative organ. There is a motto in the French procedural law: the judge in the case itself is also the judge in the case exception. According to this principle, the judge with jurisdiction over the main subject matter of the proceedings is also entitled to jurisdiction over subsidiary issues.[8]In the administrative incidental civil litigation, the administrative litigation is the main litigation, so the court with jurisdiction over the administrative litigation should also obtain the jurisdiction of the incidental civil litigation. Therefore, it should be clearly stipulated in legal form that the court accepting administrative litigation is the jurisdiction court of administrative incidental civil litigation, so as to ensure the smooth progress of administrative incidental civil litigation.
Third, for the trial of administrative incidental civil litigation cases, according to the provisions of my country's Administrative Procedure Law, administrative cases are collegial and summary procedures are not applicable. The civil procedure law of our country stipulates that simple civil cases with clear facts, clear rights and obligations and little dispute shall be handled by summary procedure. In view of the subsidiary nature of incidental civil litigation, therefore, the author believes that administrative incidental civil litigation should be unified by the collegial panel to hear, not applicable to summary procedures.
Fourth, with regard to the trial methods of administrative incidental civil litigation, scholars believe that there are generally three types: first, incidental civil litigation and administrative cases are tried together; second, incidental civil litigation and administrative cases are tried separately, and judgments are made together; third, incidental civil litigation and administrative cases are tried and judged separately.[9]It should be considered that when the people's court hears administrative incidental civil litigation cases, with reference to criminal incidental civil litigation procedures, in general, that is, the causal relationship between incidental civil litigation and administrative litigation is clear, and when the facts of the case are concise, the same trial organization should pass The court session is tried together and resolved together, which is conducive to the rapid and timely resolution of the case. However, in real life, some incidental civil cases are particularly complicated. Trial together will cause excessive delay in the trial of administrative litigation and affect the timely conclusion of administrative litigation. If the parties to incidental civil litigation cannot appear in court for some reason, consideration should also be given to separate the two types of litigation. The administrative case will be tried first, and then the same trial organization will continue to hear incidental civil litigation after the trial is completed.
Fifth, administrative incidental civil litigation involves two different types of legal relationships. In the trial, the relevant provisions of the Administrative Procedure Law and the Civil Procedure Law should be applied to the administrative part and the incidental civil part respectively. The same should be true for the burden of proof. According to the relevant laws and regulations of our country, in the administrative litigation, the defendant administrative organ has the burden of proof for the specific administrative act, should provide the evidence of the specific administrative act and the normative documents on which it is based, and shall not collect evidence from the plaintiff and witnesses on its own during the litigation process. The rule of evidence in civil litigation is "who claims, who gives evidence". Therefore, both parties in incidental civil litigation have the burden of proof to provide evidence to prove their claims. Of course, because the plaintiff of the incidental civil action is always in a passive position in the administrative activities, he does not necessarily understand the facts and laws on which the specific administrative acts made by the administrative organs are based, so there are undoubtedly certain difficulties in providing relevant facts and evidence. In this case, the people's court can not overemphasize the burden of proof of the plaintiff, but should be dialectically combined with the burden of proof of the administrative organ as the defendant of the administrative litigation, comprehensive review.
Safeguard Mechanism of 6. Administrative Incidental Civil Litigation
Administrative incidental civil litigation is to resolve two different types of disputes in one procedure. It is faced with many practical problems such as how to litigate, try, and allocate the burden of proof. It is a huge challenge for both judges and parties. Therefore, In order to make administrative incidental civil litigation play its due role smoothly, a set of feasible supporting mechanisms must be established to ensure it, which can be considered from the following three aspects:
1. Establish a mechanism for judges to use the power of interpretation to guide the parties to litigation.
As mentioned above, one of the basic principles of administrative incidental civil litigation is to respect the principle of the litigant's right of action, that is, in the administrative incidental civil litigation, we should also follow the principle of "not to sue or ignore" and respect the litigant's right to choose whether to file an incidental civil litigation. However, considering the actual situation in our country, the litigant's litigation knowledge is often relatively lacking, which may lead to a large number of cases that cannot be solved through administrative incidental civil litigation, in the process of filing and hearing a case, the judge should give full play to his subjective initiative and make full use of the power of interpretation to guide the parties to file administrative incidental civil litigation when he finds that there is an intersection of administrative and civil disputes and is suitable for settlement through administrative incidental civil litigation.
2, the establishment of the court internal coordination mechanism.[10]
The so-called internal coordination mechanism of the court refers to a mechanism in which the administrative division and the civil division of the court coordinate on whether the issue of administrative incidental civil litigation is met and applied when the administrative and civil cases are heard at the same time. The parties file administrative litigation and civil litigation on the related administrative disputes and civil disputes respectively. During the trial process, there may be differences between administrative judges and civil judges on whether they conform to and apply administrative incidental civil litigation. At this time, a mechanism is needed to coordinate such differences. Under the current circumstances, the institution to resolve such differences can be the adjudication committee.
3, the establishment of administrative trial organizations to introduce civil trial judge mechanism.
Administrative incidental civil litigation cases involve two different types of disputes, and the two different types of litigation are tried by the administrative court, which inevitably leads to the problem that the judges of the administrative court are not proficient in civil business, which is one of the reasons why some scholars oppose the establishment of the administrative incidental civil litigation system, therefore, in order to ensure the realization of substantive justice, we should try to introduce civil court judges into the administrative incidental civil litigation trial organization, the collegial panel may be composed of judges of the administrative court, judges of the civil court and people's assessors. There are no legal obstacles to this. The Administrative Procedure Law stipulates that the people's court shall hear administrative cases by a collegial panel composed of judges, or a collegial panel composed of judges and people's assessors. The "judge" here does not specifically refer to administrative court judges. This kind of operation also exists in judicial practice. In our country, a considerable number of basic-level people's courts often need to borrow judges from other courts due to the insufficient number of judges in the administrative courts to form collegial panels. Of course, under normal circumstances, in the composition of the collegiate panel, the number of administrative court judges should not be less than that of civil court judges. This is based on the consideration of the relationship between administrative litigation and incidental civil litigation. It is believed that such a mixed collegiate panel can, at least at the institutional level, ensure a fairer and more efficient completion of the trial task of administrative incidental civil litigation, and maximize the superiority of the administrative incidental civil litigation system.
Conclusion:
In short, whether in theory or in judicial practice, it is very necessary and feasible to establish a system of administrative incidental civil litigation in China, which is of great significance for maintaining the unity and authority of the judiciary, supervising the administration of state administrative organs in accordance with the law, and protecting the legitimate rights and interests of the parties. However, due to China's administrative procedure law and the relevant provisions of the administrative incidental civil litigation provisions, in the legislation is still in the blank stage, so in judicial practice will also encounter other such as the scope of the trial of the case, the actual emergence of conflict and coordination and other issues, need to be set up in the process of special attention. We should establish these systems in legislation as soon as possible, provide a more specific operational basis for judicial practice, and change the current legislative gaps in our country, so as to further improve our country's trial system.
References:
[1] Ma Huaide, Principles of Administrative Litigation, Law Press, 2003.
[2] Jiang Mingan, Editor-in-Chief, "Administrative Law and Administrative Procedure Law", Peking University Press, Higher Education Press, 2000 edition.
[3] Shi Jincai, Chen Xiaoyu: "Reflections on Several Issues Concerning Administrative Incidental Civil Litigation" in "Research on Administrative Law Theory and Trial Practice", People's Court Press, 2000 edition.
[4] Gan Wen, "Comments on Judicial Interpretation of Administrative Procedure Law-Reasons, Viewpoints and Problems", China Legal Publishing House, 2000 edition.
[5] Wang Mingyang, French Administrative Law, China University of Political Science and Law Press, 1988.
[6] Luo Haocai, Administrative Law, Peking University Press, 1996.
[7] Zhang Zhengzhao, Administrative Law and Administrative Litigation Law, 1999 edition of Renmin University of China.
[8] Yang Weidong, "An Exploration of Administrative Incidental Civil Litigation", in Administrative Law Research, No. 1, 1998.
[9] Wang Baoli, Liu Desheng, "Discussion on the Issue of Administrative Litigation Attached to Civil Litigation", Law and Business Research, No. 6, 1996.
[10] Li Xiaozhuo, "Discussion on the Scope of Administrative Incidental Civil Litigation", Democracy and Legal System, No. 6, 2006.
[11] Research Office of Shanghai No. 1 Intermediate People's Court: "Basic Issues Facing the Judicial System in the 21st Century", in "Law", 1998 No. 12.
[12] Chen Jiyong, "Legal Reflections on the Establishment of Administrative Incidental Civil Litigation System", Fujian Law, No. 4, 2008.
[13] Li Xiaoyang and Xiao Yunlin, "Administrative Incidental Civil Disputes and Trial of Parallel Cases", Legal System and Society, No. 11, 2008.
[14] Wei Guangfei: "Conflict and Coordination between Administrative Litigation and Incidental Civil Litigation", in Contemporary Law, No. 10, 2003
[15] Wang Mengfei and Wei Bing: "A Brief Exploration of Administrative Incidental Civil Litigation", Journal of Taiyuan Normal University (Social Science Edition), No. 1, 2006.
[16] Ma Fengming and Song Jinlin, "On the System of Civil Litigation Attached to Administration", People's Justice, No. 8, 1997.
(This article won the first prize of Jinan excellent paper)
[1]Gan Wen: Comments on the Judicial Interpretation of Administrative Procedure Law-reasons, viewpoints and problems, China legal Publishing House, 2000 edition, p. 175.
[2]Yang Weidong, "A Brief Exploration of Administrative Incidental Civil Litigation", in Administrative Law Research, No. 1, 1998.
[3]Wang Baoli, Liu Desheng: "Discussion on the Issues of Administrative Litigation Attached to Civil Litigation", in Legal Business Research, No. 6, 1996.
[4]Shi Jincai, Chen Xiaoyu: "Reflections on Several Issues Concerning Administrative Incidental Civil Litigation" in "Research on Administrative Law Theory and Trial Practice", People's Court Press, 2000 edition, pp. 751 and 763.
[5]Ma Huaide, Principles of Administrative Litigation, Law Press, 2003, pp. 41-44.
[6]Jiang Mingan, Editor-in-Chief: Administrative Law and Administrative Procedure Law, Peking University Press, Higher Education Press, 2000 edition, p. 197.
[7]Ma Huaide, Principles of Administrative Litigation, Law Press, 2003, p. 43.
[8]Wang Mingyang, French Administrative Law, China University of Political Science and Law Press, 1988, p. 591.
[9]Ma Huaide, Principles of Administrative Litigation, Law Press, 2003, p. 45.
[10]Chen Jiyong: Legal Reflections on the Establishment of Administrative Incidental Civil Litigation System, Fujian Law, No. 4, 2008.
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