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英国essay代写:Judicial and administrative interaction

2019-07-15 | 来源:51due教员组 | 类别:Essay代写范文

本篇essay代写- Judicial and administrative interaction讨论了司法与行政良性互动。一般意义上,司法与行政良性互动机制是指司法机关与行政机关为实现现代意义的法治,通过信息交流,相互影响的行为过程,但由于语境、考察角度的不同,司法与行政的良性互动机制在含义运用上存在宏观、中观和微观之别。完整意义的司法与行政良性互动是在三个层面进行的,需要分别考察。本篇essay代写51due代写平台整理,供大家参考阅读。

In general, the judicial and administrative benign interactive mechanism refers to the judicial organs and administrative organs to implement the rule of law in the modern sense, through the exchange of information, mutual influence the behavior of the process, but because of the difference of the Angle of context and inspection, the benign interaction mechanism in the meaning of judicial and administrative use on macro, meso and micro. In other words, the positive interaction between justice and administration in the full sense is carried out at three levels, and we need to examine them separately.

At the macro level, this course of action refers to the judicial organ affirming the lawful administrative act by judicial means, revoking, changing or confirming the illegal administrative act, and standardizing the legal operation of administrative power by national judicial power. In this sense, the judicial review system and the trial system of administrative cases in common courts in common law systems, as well as the administrative litigation system in civil law systems, are all benign interactions between judicial and administrative at the macro level. It needs to be emphasized that the initiator of the benign interaction between the judiciary and the administration mentioned here should be the judicial party, not the administrative party, otherwise it will become the benign interaction between the administration and the administration. Moreover, the benign interaction does not equal to the pure business connection. The benign interaction between the two must promote the two fields, while the interaction that only serves one field cannot be called the benign interaction between justice and administration. Therefore, neither the public prosecution system in Anglo-American law system nor the public security investigation system in our country can be regarded as the benign interaction between justice and administration. First, in the above two system, though in form are made by administrative organs and judicial organs to deal with, but whether it is in the United States as the administrative organs of the procuratorate, or characteristics to judicial and administrative dualism of public security organs in our country, its when dealing with the judicial organs, all in the service of the criminal trial, do not have any administrative purposes, and therefore should not belong to the category of judicial and administrative benign interactive mechanism.

As for the benign interaction between judicature and administration at the macro level, the basic condition is that the state power is divided into administrative power and judicial power by institutional arrangement, which are respectively exercised by different organs. In China's feudal society when the judiciary and administration were integrated, there was no "soil" for them to exist. It was not until after the revolution of 1911 that China established special judicial organs completely decouple from the administrative power that the interaction between the judiciary and administration at the macro level became possible. After the founding of the People's Republic of China, this basic condition was stipulated by the constitution of 1982 on the independence of judicial organs and judicial power. In addition to the separation of the two powers, the benign interaction mechanism between the judicial and administrative authorities at the macro level also needs the institutional provisions on the interaction between the two powers at the national level. In this regard, the administrative litigation system established in 1989 formally marks the establishment of the benign interaction mechanism between judicial and administrative organs in China at the macro level.

In the medium level, this behavior process refers to the communication mechanism between judicial organs and administrative organs to achieve specific functional goals. According to the practice in China, the specific functional objectives of meso interaction mainly include three functions: to work together to properly solve administrative disputes, to promote administrative law enforcement and judicial work, and to improve the quality of administrative law enforcement and judicial teams. According to the logic of functionalism theory, the realization of institutional function is the fundamental purpose of institution, and the design of specific content of institution must conform to its functional presupposition. In order to realize its main function goal, a series of concrete ways and methods are designed. Next will further clarify the judicial and administrative benign interaction of the main function, and the realization of the function of various specific system design to give a brief introduction.

Proper settlement of disputes is an important task of administrative law enforcement and administrative trial. The benign interaction between judicature and administration can give full play to the advantages of the two dispute settlement mechanisms, form a joint force to resolve conflicts and promote the harmony between the officials and the people.

The specific form of realizing this function is special consultation. Special consultation is the most common communication channel. The undertaking judge or the administrative organ staff member carries on the instantaneous mutual communication regarding the routine trial or the law enforcement work to encounter the question, this kind of interactive form characteristic lies in the direct, the pertinence, is quite convenient.

Administrative trial and administrative law enforcement have accumulated a lot of experience in their respective fields and formed a considerable number of normative practices tempered by practice. These contents are of great significance for administrative trial personnel and administrative law enforcement personnel to accurately understand and handle administrative disputes and further promote administrative law enforcement and administrative trial work.

The specific forms of realizing this function include information bulletin, judicial advice, discussion and joint research. Information communication is the most important interactive communication channel. At present, information communication mainly involves new normative documents, important meetings and activities in the administrative field. Judicial advice is a very important way of interactive communication, and it is also a trial activity clearly stipulated in the administrative procedure law. Administrative judicial proposals have always played an important role in the judicial proposals issued by the court. Through judicial Suggestions, the court points out the universal problems existing in the daily law enforcement and management work of administrative organs, and sometimes it can further promote the development of other forms of interactive exchanges. Discussion is a common communication channel at present. The advantage of the discussion is that the content of interactive communication is relatively concentrated and targeted, and the communication between the two sides can be relatively in-depth. Discussion is a very important and effective interactive communication mode. This kind of discussion and discussion all obtained the good response. Joint investigation is also a beneficial way for the benign interaction between justice and administration. The investigation and research conducted by courts and administrative organs on issues of common concern in practical work can form a broader perspective, mobilize a larger range of resources, make the investigation more targeted and operable, and help improve the transformation level of research results. However, at present, this form of interaction is relatively rare.

As two closely related fields, the benign interaction between justice and administration can provide judicial and administrative law enforcement personnel with a broader learning horizon, richer learning resources and more diversified learning methods, and play a unique role in promoting the improvement of comprehensive quality of judicial and law enforcement personnel.

The specific forms of realizing this function include trial observation, cross-teaching and personnel exchange. Trial observation is not only an intuitive interactive mode, but also a regular external publicity channel. The advantage of trial observation is vivid and intuitive, so that the listener impressed. Cross-teaching is also a common communication channel at present. Courts and administrative organs usually arrange off-job training for a certain period of time every year. From practical experience, cross-teaching is conducive to fully mobilizing the enthusiasm of lecturers and listeners, with good results. The interactive form of cross teaching is characterized by relatively concentrated content and large amount of information. The advantage of this communication channel is that it is direct, in-depth and relatively comprehensive. In recent years, staff of other administrative organs communicate with the court, and judges communicate and learn from other administrative organs.

At the micro level, this behavior process mainly refers to the communication between the court and the administrative organs involved in administrative litigation in order to effectively solve administrative disputes, supervise administrative ACTS and relieve civil rights. In China, it mainly refers to the case coordination mechanism. Case coordination is a way for the people's court to coordinate and communicate with the administrative organ according to the specific case processing, and introduce the role of the administrative organ to help the court resolve administrative disputes under appropriate conditions.

At present, the institutional level of case coordination mechanism has been continuously improved, which is mainly reflected in two aspects: first, the standardization of mechanism has been improved. The second is the refinement of the content of the mechanism. For example, shandong rizhao intermediate court further refined the administrative litigation coordination procedure, clarified the specific steps for the coordination before, during and after litigation, and standardized the content of litigation coordination.

The establishment of case coordination mechanism is highly controversial. Most views hold that case coordination provides institutionalized shelter for the vicious interaction between administrative organs and judicial organs, which will make "judicial power has more than enough support for administrative power, but less supervision; Maintenance, lack of correct ", also can make the infringement of the right of relative person's legitimate rights and interests can not get due relief, finally damage the judicial justice, but the case for coordinate system is to solve administrative cases, non-profit, professional discretion is an effective means of sexual problems, only need to abide by the principle of "no unilateral contact", can avoid the risk of judicial injustice. Meanwhile, the administrative litigation mediation system was added to the revised administrative procedure law in 2014, which provides a strong normative basis for case coordination. The way of case coordination needs to be flexible and varied according to the specific case. For some problems that are simply "case handling" and cannot be solved by the simple judge, effective case coordination can be to the point and truly realize the end of the case. There is no lack of successful cases in practice and good social effects have been achieved.

The benign interaction between justice and administration is interrelated at three levels. The administrative litigation at the macro level is fundamental, and both the micro level and the medium level rely on the interaction at the macro level. At present, it is rare to understand administrative litigation from the perspective of benign interaction between justice and administration. In order to avoid temporary over-reach, this paper will mainly analyze the related issues of benign interaction between justice and administration at the medium and micro levels.

The principle of benign interaction between judicature and administration includes both construction principle and operation principle. The construction of the benign interaction mechanism between judicature and administration is still in the initial stage, so it is of great significance to study its construction principle in the future.

The construction of judicial and administrative interaction should follow the three principles of party leadership, system construction first, and judicial justice. The work of the subject of public power in China must be carried out under the leadership of the party organization and supported by the party organization. This is due to the "local degree of interaction and effect". The current principle of system construction refers to that the system of mechanism construction precedes the system of mechanism construction and USES the system to restrain the arbitrariness in the process of mechanism construction. The basic system of benign interaction between justice and administration should be stipulated first, preferably at the level of law, or at least at the level of judicial administration. The interactive forms that can be popularized in the process of mechanism construction should be timely converted into universal norms. If the benign interaction between judicature and administration takes the system construction as the breakthrough point, through the construction and the consummation interactive mechanism, will certainly provide the more effective system resources and the broader social resources for resolving the individual case contradiction. Maintenance of justice principles for the mechanism building, mainly emphasized that there is a red line should be to safeguard judicial justice, judicial and administrative benign interaction mechanism of the interactive forms or if a does not guarantee the judicial justice, it should not be the interactive form into the benign interactive mechanism, guarantee judicial justice, after all, is the interactive nature of determinants of virtuous rather than vicious.

Besides the principle of judicial justice, the operating principle of the benign interaction mechanism between the judiciary and administration also includes the principle of administration by law. The judicial justice here is different from the judicial justice in the principle constructed above. For the mechanism operation, the principle of judicial justice can be understood as the principle of judicial neutrality and the principle of maximizing the interests of administrative counterparts. The principle of judicial neutrality is determined by the interactive mechanism serving the judiciary. Among them, the principle of judicial neutrality requires that the interaction between the judiciary and the administration should not make the court inclined to the administrative organ and relatively prohibit unilateral contact, while the maximization of the interests of the administrative counterpart is generated to remedy the inequality of the administrative legal relationship. Only by fully protecting the legitimate rights and interests of administrative counterparts can the benign interaction mechanism gain the mass basis and break the stereotype of western two rights and independence.

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