The plight of China's administrative judicial supervision and the way out _13219

By Nancy Mills,2014-11-29 10:56
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The plight of China's administrative judicial supervision and the way out _13219

    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] (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.

     Traditional culture of 'respect for the humble' the psychological

    impact, as well as the power structure design, the law's limitations, enabling the country to supervise the higher judiciary can not super-

    abstract administrative acts of the executive branch, but also difficult to monitor levels and even lower-level executive branch abstract behavior.

    This is the dilemma for the current administrative and judicial supervision of the national power structure on the underlying causes.

     2. In the concept of judicial power and the important position and

    function of the judiciary lacks the necessary depth to realize. China's 2000 years of feudal autocratic rule, the judiciary has always been instruments of violence as a rule of ordinary people standing on the opposite people, people from their long experience in the cast of hatred

    and away from the social psychology of justice. In the people to establish their own regime, in order to grasp the name of sovereign jurisdiction, the social psychology of this is difficult to eliminate in a short time; together in recent years, often criticized for the people present in the ranks of the judiciary itself on the various were unfair and embarrassing,

embarrassed situation, due to lack of complete long-term treatment in a

    certain extent lost the trust of the people correspondingly dampened their

    confidence in the judiciary and judges. All this to some extent undermined the authority of the Chinese judiciary. In addition, the judiciary itself which has the job characteristics are not due respect, for the moment lost some of the legal acts purely lack of tolerance, but also the judiciary and judges, including the exercise of the right to administrative and judicial supervision judicial act within the over-cautious and indecisive,

    and also affected, including the administration of justice, including

    supervision of professional efficacy.

     Configuration of the power structure of a scientific system, coupled with an independent judiciary free from any interference in the social conditions of the exercise of judicial power, has long been

    regarded as constitutional scholars western way of 'essence'. China's judicial organs in the country's political and legal life, the importance and value, (2) is still far not been recognized, a number of purely judicial acts and unnecessary often on the political scale up, said one said. As some lower courts have direct reference to the Constitution to decide cases, if deemed inappropriate to take measures to correct it wants, no need to overreact.

     3. Right, including administrative supervision, including

    supervision of legal supervision and constitutional theory not go far enough. In the three decades prior to the beginning of reform and opening up, China's legal theory study was conducted in a desert started. With the continuous deepening of reform and opening up, especially with the 1982 promulgation of the constitution and implementation of legal circles in China, including constitutional scholars on constitutional supervision, legal supervision, the Constitution is directly applicable and indirect

    application of the constitutional supervision mechanism Perfection and organizational issues such as the constitution has been law in particular, the study of hot topic. By the late 20th century early 21st century, around the constitutional issue of whether and how the application of justice, but also set off a further study of fever, the argument is also quite intense. From the academic research sense, this will help the study of law and the constitution of a golden opportunity to thrive in China's

    legal and constitutional study of history, is bound to leave an impressive mark.

     However, over whether the Constitution can or should be able to apply to the issue of justice, but at the theoretical level, has serious differences. Generally can be divided into 'Ting for sending' and 'counter-application to send', there are some intermediate compromise views. 'Ting for sending' view that the Constitution is law is law and should be able to apply to the judiciary. In China, regardless of the

    provisions of the Constitution, various laws and regulations, as well as important documents of the ruling party and state leader's speech, can not find the judiciary to decide cases in accordance with the Constitution can not be applied; and emerging practice of direct introduction of the

    Constitution adjudication of the case and the Supreme People's Court made the corresponding views of judicial interpretation or directives from the practice to support the Constitution can be directly as a basis for trying

    the case, including the Chief of the academic opinions. (3) 'counter-

    application to send' the view that the Constitution is the fundamental law of the country, its basic nature is a political law, and therefore do not

    apply to courts based on the case, but also because the Constitution 'too abstract', nor the basis for the trial court is appropriate to do so . The administration of justice is mainly based on relevant laws, with the corresponding legal basis for the legitimacy of trials will be able to

    meet the requirements. Is worth mentioning is that in the 'counter-

    application were' there is a rather extreme view that the search over the whole constitution, are not 'justice' word. In fact, 'then the process of drafting the constitution had explicitly rejected the use of' justice

    'word. This is a much greater extent with our non-use of the West

    'separation of powers' the guiding ideology of the regime. Today, if you do not ask why, advocate the so-called 'constitutional justice,' and

    summarily rejected by the Constitution with those who have the 'justice' to 'of' the Constitution, it is against the original objective with the drafting of the constitution, is the lack of respect for the Constitution ' (4) and compromise the views generally agree that this should not be

    taken to 'yes' or 'non' simple judgments should be based on actual situation specific, in-depth analysis.

     Academic insights are often able to become a leader in political decision-making, due to 'anti-applicable faction' academic opinion for a

    specific political intention, and therefore the weight on the academic advantage. While the 'Ting for sending' include more academic elite, but also the formation of a larger academic influence.

     4. Administrative law and administrative procedure law education

    lags behind. Under the current legal education, if not administrative law, at least in the overall education of administrative procedure law legal education, especially in the procedural law, education has become the weakest link. Under the present procedural law education, usually arrange the teaching of criminal procedure and civil procedure law courses, while the Administrative Procedure Law is still carried out in the administrative law teaching and arranged hours are limited, it is

    difficult to fully grasp the students through teaching, including the Chief judicial supervision, including basic and systematic knowledge. And relevant curricula are varying degrees of knowledge, old and divorced from the phenomenon and practice; and tertiary hospital law, the Department of undergraduate and graduate internships are also largely a formality, so that students are largely invisible during the internship period practical training in this area. All this resulted in missing links in the

    administration of the Court the trial judge trained, and in this area-han

    in the defense lawyer are even scarcer. These are also the difficulties caused by the administration of justice is an important reason for monitoring.

     Second, out of the administrative judicial supervision of the

    situation by exploring

     The current administrative and judicial oversight of the difficulties still exist, causing the law, including judges and law researchers worry and concern. Bureau of different path-breaking move one

    after another, some of which are useful, while others should be explored further in-depth manner.

     (A) The courts and judges in the administrative trial, to explore

     Nearly a dozen past two decades, with the concept of human rights

    and human rights to enhance self-protection awareness, the administration

    submitted to the court proceedings not only the population grew, and the 'guts' is also growing, and many administrative proceedings directed at

the State Department ministries, commissions, Bureau; involved are not

    confined to the aspirations of the executive relative to the individual as the legitimate rights and interests of relief, but asked the court to abstract administrative acts, in particular the relevant administrative

    authorities to formulate administrative regulations, rules, regulations, etc. review .

     Handling the face of heavy pressure, and the trial of

    administrative cases, the face of lack of the necessary legal basis for such a predicament, a number of courts and judges, especially the grass-

    roots courts and judges have carried out some were actually think that some bold explorations. One of the most sensational effects of social initiatives, that is, judgments in cases of administrative proceedings (including some aspects of civil and commercial litigation cases) directly quoted constitutional provisions. This reference can be divided into several cases, one administrative proceedings the parties in their pleadings referenced in the constitution to support his claims for or

    against each other; second, the court wrote in reference to the reasoning part of the constitutional provisions in order to strengthen the legitimacy of judgments; third, directly applicable part of the sentence, that that is based on 'The People's Republic of China Constitution,' the first several provisions of the following sentence and so on. Before the statement, some scholars have gathered in a nationwide collection of such stories compiled the book was published. Some of them are administrative


     If a specific administrative judgments in court cases in different ways and different needs to invoke the constitutional provisions, but to make a more convincing the case of judgments, then invoke the constitutional provisions of this act is involved, and the significance of monitoring the administration of justice not. Administrative judicial supervision of real significance is that the courts and judges, consciously or unconsciously abstract administrative acts carried out a

    review, this review appears once in their judgments on the fact that the abstract administrative acts, particularly those relating to the administrative rules and regulations , regulations and other legal norms of universal validity, or even abolition, have had an impact.

     In 1998, China's western Gansu Province, Jiuquan Prefecture Intermediate People's Court a judge on December 15 that year with the interests of consumers in the adjudication of the defense of the administrative litigation cases, found in Gansu Province People's Congress enacted local regulations' Quality in Gansu Province Supervision and Management Regulations' does not comply with two state laws, namely, 'Product Quality Law' and 'the Administrative Punishment Law', and

    therefore refused to Gansu Province, the local regulations in accordance with judgments, which in practice have not been clearly announced the suspension of the local laws and regulations legal effect. This is the history of the People's Republic was the first time that a District Court

    judge on local organs of state power of the abstract administrative act, that their local laws and regulations formulated by judicial review. Although this is not a 'constitutionality' but simply 'legitimacy' review, but still caused a sensation in the local and even national nature of effects, as well as Gansu Provincial People's Congress to immediately intervene, Gansu Province Higher People's Court has also forced by circumstance to an immediate retrial the case, the trial judge can not

    come out alive. The case of a similar nature also occurred in China's Henan Province, in 1998 and 2003, there have been two cases of court decisions in the area of local laws and regulations in violation of national laws and therefore do not apply to cases, also caused a sensation of the social effects of The result is also a right to make administrative judicial review of the trial judge suspended the sanctions. Since 2003, an administrative judicial review of such cases are no longer appeared in the

    media coverage.

     (B) The theory of law

     During three decades of reform and opening up, especially in the recent two decades, the Chief has been a judicial review of administrative law as well as judicial reform a hot topic. Legal scholars have been, and

    is the general direction of the judicial reform, administrative and judicial review mechanisms and principles, administrative and judicial review bodies, the improvement or reconstruction conducted serious, and multi-faceted research and discussion. Worthy of a simple sort and sum up the following three areas.

     1. With regard to the overall direction of judicial reform. In the early discussions of the direction of judicial reform, once focused on whether it should follow the example of the judicial system of Western

    countries to achieve independence of the judiciary and judges, not just with the Chinese Constitution provides for judicial independence. This discussion and some ideas on judicial reform, due to insurmountable obstacles on the constitutional system, while France and slowly fade out as the academic field. Recently, it was also a rise of the value of the judicial reform, positioning and orientation of the heated debate, and basically formed of two factions opposing views. A body of opinion may be

    referred to as 'popular justice' or 'the democratization of justice', another party opinion can be summed up as 'judicial professional'. Pre-

    school of the main points from the introduction to the following general can be proved: 'all these years of fundamental error is that the judicial reform, judicial reform, the error in some scholars, under the guidance of the judge's intention to promote the next group and embarked on the so-

    called professional -oriented line, the judiciary and the people distanced

    themselves, the people lost the ultimate control of the judicial power. Judicial career of efforts and did not bring about what people thought honest, fair administration of justice, on the contrary, a safeguard their own interests better than the judges of social justice groups are taking shape. To this end, the case gives us the greatest lesson that must be unwavering in groups of judges on the judicial power to break the monopoly of the democratic order, through a variety of means to carry out the

    people of the judicial power under effective control. '(5) After the school of opinion was mainly concentrated in the following areas: professional for judicial officials, elected on a Specialization; for judicial decision-making to follow the law and legal interpretation of

    norms; judicial power exercised in a manner to be neutral; to people and as well as human and institutional relations between the courts and administrative bodies to distinguish; establish justice professional ethics. Argued that: 'Historically, the premise of the legal profession is not a democracy, on the contrary, an independent and highly professional judiciary but can be reduced to a democracy is not a prerequisite for tyranny of the majority. '(6)

     More than two views in the legal practitioners and legal academics

    have been the appropriate response. The former manifests itself in making the people happy sort of judicial popular discourse, a province Higher People's Court also issued a document in the court system in the province

    to implement a 'MA Xi-5 trial mode' [2] advocating for the courts located in the city square and the fields. While the latter are some scholars in the French academic recognition and support. Reposted elsewhere in the paper for free download http://

     The above two views on the further analysis and evaluation is not the task of this article, but on the administrative and judicial review of the academic sense, the professional direction of judicial reform say with certainty that it is more conducive to the establishment and improvement of administrative and judicial review mechanisms. From a macro point of view the background, the fundamental feature of modern means of social-

    oriented division of labor, in modern industrial production and the

    information industry in the case, in the state power of science and professional division of labor in the configuration is no exception. In the world of modernization of judicial system, from the judge professional education, training, selection and configuration of the court agencies, career-oriented firm and clear direction of development, China should not be an exception since. We believe that only meet the professional preparation requirements of relevant laws, set career-oriented specialized

    courts, training and professionalism has a strong selection of judges, China's administrative and judicial review mechanisms can be improved and a sound, administrative and judicial review of the legal functionality and effectiveness to get maximum play.

     2. Standard of judicial review of administrative and research. Chinese law, administrative law scholars, especially scholars, and did not just satisfied with the direction of reform of the judiciary, but on deep into the standards of judicial review of executive selection and

    application level, even more commendable is that also went to the administrative discretion judicial review standard of reasonableness as the selection and application of more sophisticated level.

     On administrative discretion standard, according to the 'PRC

    Administrative Litigation Law' provisions of Article V: 'People's Court in administrative cases, specific to the respondent to review the legality of administrative acts. 'This has been referred to as the principle of the

    legitimacy of the review. However, according to the Administrative Law Theory, as well as the theoretical rule of law in developed countries in the Western experience in administrative litigation cases, specific review of the reasonableness of administrative acts is not only possible but

    necessary, the rule of law in some western developed countries, the judiciary and the judges also formed a reasonable review of their different mode of application of the criteria. Trial of administrative cases in China, also is bound to encounter this can not evade the issue of reasonableness review. Academics have conducted a long-term, a large

    number of discussion and study. The basic point of view can be divided into the following three observations:

     First, the principle of rationality should include the following information: (a) comply with the objective law. (2) comply with legal purposes. (3) The decision was based to fully and objectively. (4) comply with the state and people's fundamental interests. (5) comply with

    justice. Just multi-meaning, but refers primarily to the dominant social morality.

     Second, the specific requirements of the principle of

    reasonableness include the following aspects:

     (1) The motive for the exercise of power should be consistent with

    the purpose of the power conferred by law. (2) The behavior of the exercise of power should be established on the basis of due consideration. (3) the content and results of the exercise of power should be fair, moderate, reasonable, feasible. (4) violation of the principle of reasonable administration also need to bear the legal responsibility. (8)

     Third, some scholars believe that the administrative rationality refers to the administrative acts by the administrative body in content

    and form are in line with fair rules. Formal rationality refers to the administrative body to implement the modalities and procedures for administrative actions should be reasonable, fair, and can not make people reason to suspect that the relative reasonableness of administrative acts. Include the following: (1) The administrative body and its administrative staff and administrative staff, administrative actions by the relatives and have no personal interest links. (2) hold hearings, (3) There is no

    favoritism. Content of rationality refers to the administrative body should not only make people believe that the executive act is justified, and this rationality is real. Include: (1) a reasonable motive. (2) should not take into account irrelevant considerations. (3), in line with normal general judgments. (4) in line with the purpose of discretion. (5) equal treatment. Equality, including equal numbers and proportion of quite two aspects. (9)

     Judicial review on administrative discretion the choice of a

    reasonable standard, it is argued that: 'can be divided into two dimensions, one of the elements of administrative acts can be divided into the benchmark review of the purpose of the legitimacy of the legitimacy of considering whether the proportional principle is consistent with the principle of equality, respect for and protection of human rights standards 5. Second, the process of administrative acts can be divided into the benchmark review the factual findings are reasonable, interpretation of the law are reasonable, choice of procedure are reasonable, rational behavior of the results of the four criteria.

     3. In the establishment of a more effective administration of justice of the institutions, raised a number of noteworthy opinions.

    China's current practice is that the ordinary courts, that is the people's court trial mode. Administrative cases and other criminal, civil and other cases by the People's Court. In China, four courts, namely, national-level

    Supreme People's Court, provincial higher people's courts, regional and municipal intermediate people's courts and the county's grass-roots

    people's courts in the administrative divisions were established specifically to hear administrative cases . According to 'The People's

    Republic of China Administrative Litigation Law' provisions of the configuration of the jurisdiction of administrative cases are: the general jurisdiction of the grass-roots people's court of first instance

    administrative cases; Intermediate People's Court under the jurisdiction

    of the following first instance administrative cases: (1) to confirm the invention patent cases, Customs handling of cases; (2) of the State Council departments or provinces, autonomous regions and municipalities have made the specific administrative act litigation cases; (3) The area of major, complex cases; Higher People's Court within the jurisdiction of this jurisdiction significant and complex administrative cases of first

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