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The British institution of administrative justice

2018-11-09 来源: 51due教员组 类别: Essay范文

下面为大家整理一篇优秀的essay代写范文- The British institution of administrative justice,供大家参考学习,这篇论文讨论了英国行政裁判所制度。行政裁判所制度是英国行政领域中很有特色的制度。与行政诉讼相比,行政裁判所制度拥有其自身的优势。行政裁判所是通过不断地改革来适用英国社会对行政争议的解决机制的需要。行政裁判所法律制度存在有其合理性,与法院相比,裁判所的主要显著特点是成员的专业性和程序的灵活性。

administrative justice,英国行政裁判所制度,essay代写,作业代写,代写

The institute of administrative adjudication applies the need of the settlement mechanism of administrative disputes to British society through continuous reform. Today, the institute of administrative justice has been identified as an important part of the British justice system. According to the book of the British administrative law, the development and changes of the British administrative institute are mainly divided into four stages. In the second stage, after World War I, the government's intervention in social and economic life was strengthened, the number of administrative judgment stations increased, and it was generally considered to have violated the power of ordinary courts. When special reasons were needed, they could be set up. In the third stage, after the World War II, the number of administrative judgment stations appeared in large Numbers. The public opinion circle was critical of the conservative tendency of ordinary courts, and the phenomenon of administrative judgment stations appeared. The fourth stage is that the British government enacted the executive judgment and investigation law in 1958, which is a milestone in the development history of the British executive judgment. Since then, the British executive judgment has been generally improved, and its power has been generally recognized. In addition to the book introduces the development of British administrative tribunal of the four stages, in 2007, the country's, the tribunal, court and perform act was enacted in 1958 after the tribunal and the survey procedure, the referee system to adjust the most significantly, the nature of administrative tribunal positioning, structure, procedures, rules, decisions, appeal mechanism, supervision and relief and so on all has made the significant adjustment. Under the background of the constitutional reform, the reform focuses on simplifying the system of the judgment institute and establishing a uniform and fully juridical judgment institute.

From the above development stage, it can be seen that the administrative judgment is constantly changing with the influence of British politics, society, economy, administrative relative person demand and social public opinion. Such constant adjustment reflects the change of social administrative dispute settlement mechanism. The different stages of administrative judgment are the epitome of social change and demand. The administrative judgment institute can adjust its position and responsibility scope in time to meet the needs of the society for the administrative reconsideration system. It can be seen from the nature and orientation of administrative adjudication that from the original administrative organs to the institutions with judicial nature, to the important part of the judicial system now is a prominent example.

China's administrative review system started in the 1990s and has gone through 23 years this year. Since the administrative reconsideration regulation, the administrative reconsideration law, and the implementation regulations of the administrative reconsideration law have been successively formulated, the administrative reconsideration system has been established in China in an attempt to adapt to the profound changes in Chinese society and the needs of administrative counterparts to seek resolution of administrative disputes. China's administrative reconsideration system should be the main channel to resolve administrative disputes, but unfortunately, the system has not achieved the desired effect. On the one hand, administrative reconsideration system is greatly inadequate in accepting and handling administrative cases, as well as other disadvantages of administrative reconsideration organs, such as lack of independence and professionalism. Administrative organs often violate the legitimate rights and interests of administrative counterparts in the process of exercising administrative functions and powers, so administrative disputes are inevitable. On the other hand, the advantages of the administrative reconsideration system have not been effectively brought into play. A large number of administrative disputes are outside the administrative reconsideration relief channels, some flow into administrative litigation, and a larger number of cases enter the complaint reporting agencies. In recent years, there are many voices for reform, and the administrative reconsideration system faces urgent reform. Experts and scholars in the field of administrative law, led by professor ying songnian, have drafted the proposal for the revision of administrative reconsideration law. In recent years, the seminar on the reform of administrative review law has also been held actively, all of which are promoting the reform.

The administrative review committee pilot work in China from the beginning is a good trial step by step. In order to meet the needs of profound changes in Chinese society, resolve social contradictions and provide timely, effective and convenient relief, the reform of China's administrative reconsideration system should take the initiative to adapt to social needs and keep pace with The Times so that the system of administrative reconsideration can play its due role.

The legal system of administrative institute has its rationality, compared with the court, the main characteristic of the institute is the professionalism of the members and the flexibility of the procedure. Administrative adjudication is a simplification of common court procedures that will make it easier to understand and more efficient. At the same time, the working efficiency of government departments can be improved by separating the resolution of administrative dispute cases from their functions. Advantage is mainly embodied in the system: one is the professional, the court is enjoyed by the general jurisdiction of broad sense, the areas under the jurisdiction of the administrative tribunal narrow, the jurisdiction of the special advantage lies in the administrative tribunal must have professional handicapper or specially selected for professional skills, or sit in the same case to make them be familiar with the relevant laws and problems. Second, flexibility. Courts often adopt cumbersome procedures, while administrative tribunals take a more flexible approach, taking into account the specific circumstances of each case. The impartiality determined by administrative adjudication is equally important and must be followed by clear rules and maintain a high degree of flexibility to achieve individual justice.

China's administrative reconsideration is not professional enough, and there are problems such as insufficient human resources, low professional quality and no regulations on the qualifications of the staff. Administrative reconsideration professional team construction is particularly important to improve access to its staff, engage, identity protection, withdrawal, training system, mainly includes: one is the qualification management system, set up the administrative reconsideration system of professional certificate, also have the researchers suggest that consider from through the national judicial examination of the personnel of the administrative reconsideration work personnel selection. In addition to the judicial examination qualification certificate, the applicant shall have the administrative reconsideration vocational certificate to ensure the legal quality of the administrative reconsideration personnel. Secondly, there should be strict restrictions on the employment of part-time reconsideration personnel, and the employee must be a legal expert or scholar. Members of the administrative reconsideration committee shall be granted the right to guarantee their special status, free from interference by other organs, social organizations and personnel; Fourth, a member of the administrative reconsideration committee who has an interest in an administrative reconsideration matter or a party concerned shall withdraw on his own or upon application by the party concerned; Fifth, establish a staff training system. At the same time, the system of administrative reconsideration summary procedure and general procedure should be established to apply flexibly to specific administrative reconsideration cases, taking the specific situation of each case into consideration. The impartiality of administrative review decisions is equally important and must be followed by clear rules and a high degree of flexibility to achieve individual justice.

The independence of the administrative judgment institute is the foundation and premise to guarantee the impartiality of the judgment. Second, the members are independent, and their members are different due to different objects of work, but able to balance various interests. In order to reduce the interference and ensure the impartiality of the adjudication, the administrative and civil disputes adjudicated by the administrative organs should be the judicial ACTS.

The premise of the reform of China's administrative reconsideration system is to solve the problem of its administrative orientation. At present, there are "administrative", "judicial", "quasi-judicial" and so on. The "administrative theory" emphasizes the hierarchical supervision function between administrative organs, which is also the official attitude of China at present. "Judicial theory" emphasizes the judicial characteristics of administrative reconsideration procedure. "Quasi-judicial theory" is a combination of the first two views, and more scholars in China support this view, believing that administrative reconsideration should be the same as administrative litigation, and become the primary mechanism to resolve administrative disputes.

In the practice of our country, although the administrative organs assume a large number of judicial functions, but basically no independence, and the general administrative organs no distinction. Article 26 of the administrative procedure law, which came into effect on May 1, 2015, stipulates that: "if the reconsideration organ decides to maintain the original administrative act in a case after reconsideration, the administrative organ and the reconsideration organ that made the original administrative act shall be co-defendants; If the reconsideration organ changes the original administrative act, the reconsideration organ is the defendant." This shows that Chinese legislators still emphasize the hierarchical supervision function of administrative reconsideration organs, and still allow them to be the defendants, rather than regard them as judicial subjects. It is difficult to guarantee the impartiality of the adjudication, which is also the key factor restricting the healthy development of the administrative adjudication system at present. The lack of independence and impartiality of administrative reconsideration organs is one of the important reasons.

In order to guarantee the independence and impartiality of the administrative reconsideration organization in China, zhang shengli believes that it is imperative to establish the administrative reconsideration committee which is affiliated to the people's congress, the second level trial and the administrative reconsideration committee. One is the advantages of the administrative reconsideration system in China is not fully play, one of the main reason is the current administrative reconsideration system is internal mechanism to solve disputes through administrative system, lack of impartiality and independence, the other party to the reasonable doubt, and to take administrative review committee pattern can be changed the administrative subordination relations, administrative review committee should is in charge of belonging to National People's Congress and the National People's Congress, out of the administrative system, can improve the legal status of administrative review committee and authority, and is conducive to protect the lawful rights and interests of the other party as well as the supervision and administration, avoid to produce reasonable doubt; The second is the two-level trial system, which can not only reduce the number of administrative cases of the court, but also guarantee the fairness of the administrative reconsideration decision to a greater extent, and also reflect the principle of final judicial settlement. The court can still review the administrative reconsideration decision through judicial review. The legality, authority, impartiality, professionalism and efficiency of the administrative reconsideration committee are the ultimate goal of this reform. In order to achieve this goal, the scientific nature of the administrative reconsideration committee in its organizational form and operation mechanism is also the most basic guarantee. However, the establishment of a completely independent administrative review committee is a lack of legal basis and more policy support. The basic issues of the nature, legal status and functional orientation of the administrative reconsideration committee, as well as the institutional form and operation mode, have to be summarized in combination with the experience of the pilot experiment. In the absence of legal basis, the best choice is to improve the administrative review process.

The procedure of the English executive judgment USES the same pattern of adversarial examination as that of the court, not inquisition. British administrative law on the procedures as well as setting method of limit, the administrative organs should comply with the principles of natural justice, the referee shall be governed adversary review mode as a review for the first time, is beneficial to fully protect the rights of the parties argued, expressing its willingness to judge in a negative, neutral position at the same time, all parties to listen to opinions, accord with the principle of natural justice to listen to each other, told the state, the right to defend. The administrative reconsideration procedure in China is mainly based on the doctrine of authority. However, no matter it is the procedure of administrative judgment or administrative review, if the appropriate mode of review is not selected according to the actual situation of a specific case, and the isolated mode of review is selected blindly, it will not only be conducive to the handling of complicated disputes, but also will be detrimental to the adjudication of the case. Therefore, it is more appropriate for the reform of administrative reconsideration system to adopt the mode of antagonistic review as the main mode in terms of procedure and the mode of both authority and authority review.

In the process of adjudicating the case, the administrative adjudicator mainly adopts the speech hearing. In the administrative judge is the main form of a hearing procedure, the presiders to listen to the parties about the dispute of the oral argument, as for the fact that one party claims there is no enough evidence to support, can ask to the oath, and the process for the contents of the oath also can consider it as one of the basis of ascertaining the facts. Words trial against both are closely linked, it is one of the ways of oral argument, the two parties is controversial and applicable legal reasons or evidence that express by words form, it is advantageous to the judge find the truth of the case under the both sides of the oral argument disputes and accurately apply the law in order to solve the corresponding. Article 22 of China's law on administrative reconsideration stipulates that the administrative reconsideration shall, in principle, adopt the method of written examination. However, if the agency responsible for the legal work considers it necessary for the applicant to make a request or the administrative reconsideration organ, it may investigate the situation to the relevant organization and personnel and hear the opinions of the applicant, the respondent and the third party. It can be seen that there is a big difference between the principle of administrative reconsideration and the principle of speech adjudication in the UK. The administrative reconsideration in China mainly focuses on written review and adopts speech trial when necessary. From the point of view of procedural relief and justice, there are some problems in the two stages of identifying facts and applying law. Therefore, this paper holds that the improvement of administrative reconsideration procedure in China can be considered in the form of mainly verbal trial and supplemented by written review.

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