The plight of China's administrative judicial supervision and the way out
[Abstract]: The state's administrative power to implement all aspects of the exercise close supervision, which is the essence of the traditional jurisprudence, one is also one of the basic characteristics of modern law. China's reform and opening up three decades, one of the greatest achievements of the rule of law is the establishment of administrative litigation system, and has accordingly developed the 'PRC Administrative Litigation Law'. But China's current judicial review of administrative action and through the realization of the administrative judicial supervision, because the concept of the lack of lag and institutions are not bear to lose, people wishing to enter into the
dilemma can not be. Analysis of the causes of this dilemma and find a way out of the doldrums, it is contemporary Chinese law scholars face an urgent task. This paper attempts to do this study.
[Keywords]: Constitution of the judicial application of judicial
review of administrative and judicial supervision of the Council of State
Of reform and opening up three decades China has achieved the most significant result of the rule of law is the legal system, the establishment of administrative proceedings and administrative cases, the implementation of the trial. By the Chinese people commonly called the 'people suing government officials' legal supervision of the establishment and the corresponding formulation and implementation of the law, not only
the rule of law in China that has milestone progress, and also marks the formal integration into the world of China's rule of law in the modern rule of law in Among the international flood. However, just as Western saying goes: 'Rome was not built in a day' rule of law in China's 'city of Rome,' the establishment is not able to be completed between overnight. Just from the administrative proceedings, judicial review of administrative cases, the administrative judicial supervision system to
achieve perfect and sound, not only take time, but also in particular need to pay a higher heart labor.
1, administrative and judicial supervision of the predicament and its causes
(A) administrative judicial supervision of the dilemma
Simply put, the plight of China's administrative judicial supervision is mainly manifested in the following areas:
1. Preparation of imperfect laws
Under the existing law and administrative litigation, administrative and judicial monitoring of the relevant national laws, only the April 4, 1989 from the seventh to make people big second meeting of the 'PRC Administrative Litigation Law', 20 years, law sector seeks to amend the Act in a loud voice, but has not been carried out. In 2000 the
Supreme People's Court has made a principled application of the law of judicial interpretation, although the applicability of the law has improved and increased, but judicial interpretations can not change the basic structure of the Act. Judicial supervision from the administrative
sense, the law of the biggest gaps is that it does not give the people's court, in adjudicating cases of administrative litigation in the indispensable right of the abstract review of administrative acts. Preparation of the trial due to administrative law imperfect, the people's courts in the implementation of administrative trial, no laws of the state is very prominent, resulting in administrative and judicial oversight there is a big legal obstacle.
2. Disadvantaged position of administrative adjudication bodies more prominent
China is not, as Western countries, especially for people like France, Germany, as an independent, strong as the administrative trial, the Council of State agencies in the establishment of courts at various
levels within the system of administrative tribunals, as opposed to criminal courts and civil tribunals , its institutional status is relatively weak in general more. The face of a growing number of administrative litigation cases, the Chief Trial Chamber in the trial and use of staffing, often stretched, it is difficult substantial increase in handling speed and quality.
3. Difficult to resist or do not want to resist interference from all sides, especially the administrative intervention.
As the people's courts lack independence, the political status of courts and judges are often at a higher level or equivalent under the administrative hierarchy; Court of human, financial, and material resources at the same level they are at the same level or even the government under the government's jurisdiction under the rule of the financial sector. In China's current power structure in the strong executive, weak judiciary, under the overall situation, highlight the theme of the executive branch of interests and local protectionism, the administrative trial, the court is often forced back step by step, it is difficult to enforce the law. Administrative agencies and trial judges do not want to offend neither the executive branch, often in the
administrative cases filed prior to trial prior to the administrative proceedings were to be taught and enlightened, Xiaoyilihai a result, a large number of even as much as two thirds of the administrative cases, to administrative proceedings people withdraw an accusation brought divisions knot.
4. Including administrative adjudication bodies, including the tendency of the serious administrative court system
China's current political system because of decisions and the
'official position' of the impact of internal structure is set in the court system and judges rank the positioning of the grading, and administrative-level position and classification no difference, and even the trial of the case are also very large extent followed the
administrative layers of reporting and referrals to systems or practices. The result was that the independence of judges according to the trial judge and professionalism seriously damaged and ultimately undermined judicial oversight of the executive.
5. In the absence of clear guidance law cases, appeals of administrative cases to court often 'no legal basis, be rejected' grounds,
but rejected by the court as scheduled this divergent war ended, the protection of administrative counterpart of the the legitimate rights and
interests of the legal status of the final barrier, repeatedly plunged into loss of just embarrassing situation. This became the people's courts in China, one of the biggest criticisms; is also increasing in recent
years, groups of events and a long-term increase of the phenomenon of a
large number of petitions a important factor. The last 20 years, a court in administrative cases and other cases in order to escape the embarrassment of the situation, including the administrative counterpart
to strengthen the party, including the protection of legitimate rights and interests, especially in some grassroots people's courts, constitutional provisions are often cited as the the legal basis for adjudication, according to incomplete statistics, in the verdict on the case of a clear constitutional provisions invoked in the country may now exceed 40 cases.  (1) the continual emergence of this situation has caused the political level, including the close attention of all sectors of society. Has also
led to the academic community in France in favor of and against the heated discussions and debates.
As previously stated, the law of the Roman city are not able to set up overnight. China's current administrative and judicial oversight of
the difficulty is as if every one of us will face growing troubles as a potential result of, is inevitable. Importantly, China's administrative judicial supervision system has been established and functioning up. Placed in front of the law is now an urgent task is how to make
administrative and judicial supervision out of the present predicament, so constantly improving and perfecting them.
(B) The plight of China's administrative judicial supervision of the reasons for the formation of
We believe that the formation of judicial supervision of China's administrative difficulties due to complex and diverse, following are some of the most basic:
1. State power structure by design. China's political power structure is in accordance with the Marxist regime in theory, follow the principles of the Paris Commune Yixinggeyi building, but it formed its own characteristics. At the national power structure, the establishment of a highest organ of state power, the National People's Congress, commonly
known as the state's fundamental political system. The National People's Congress system, there is no separate establishment of a national legislature, legislative power by the NPC and the NPC Standing Committee exercise personally. When they exercise legislative power, the NPC and the NPC Standing Committee can be regarded as the national legislature. However, as the state legislature and as the highest organ of state power in the organization and activities do not respect the principle of
separation, but unity. At the highest organ of state power within the system, based on 'action' needs, set up as the highest organ of power of the executive arm, the State Council, also known as the Central People's Government. In addition, the State Council or the Central People's
Government or the state administrative organs, Consul-General, the
administration of the country. Therefore, it is also a body of shared two functions, namely, the implementation and administration. However, in actual operation, these two functions are carried out integration can not be exercised and unnecessary, respectively. However, the level of the legal status of speaking, as the highest state administrative organ
exercising administrative power and the NPC and the NPC Standing Committee
exercise the legislative power as the legislature, in roughly the same status, it is not meaningful, but this form of differences, enhancing the State Council, the Central People's Government in the national power structure in the legal status. Performance on the outside of the State Department and the legal status of the NPC Standing Committee rather, the two bodies of equal rank first and foremost, that is commonly known as the 'national'. This power structure on the result of the design, it
inherently creates a strong national position of the executive. And from the judiciary side, by the Western tradition of judicial independence, the potential impact, as well as the vigilance of the Western system of separation of powers in the judiciary and the design of the judiciary has
taken the two ideas, either by judicial authorities were satisfied that all the people Congress, within the system to enable institutions to establish the courts and judges at all levels of elected organs of state power have become a matter within the competence in order to ensure the courts at all levels derived from organs of state power organs, also provides for the exercise of judicial power independence of the judiciary from the executive organs, social groups and private interference.
Scrutinized under this structural arrangement, that the judiciary is not independent, but independence of the judiciary with the legislative and executive power within the highest organ of state power with the situation into one, there is a difference. Second, the judicial power and judicial branches into two, namely, the judicial power, judicial and procuratorial decomposition, and correspondingly, people's courts were established and the People's Procuratorate, the exercise of their judicial and
prosecutorial power. For the distinction of China and the West in general prosecutorial power prosecutorial power, China's procuratorial limited to legal supervision of this particular aspect of justice, the Constitution of the People's Procuratorate for this would be classified as state organs for legal supervision. In such a power structure design, is bound to form a 'weak justice' status. Reality of Supreme People's Court and the Supreme People's Procuratorate, and their heads is equivalent to the
administrative level under the State Council ministries and commissions level, while the difference between the State Department a full rank, is this 'weak justice' external reflection.