Academic journal article Canadian Social Science

Judicial Proposal: The Practical Review and System Evolution of Extended Jurisdiction

Academic journal article Canadian Social Science

Judicial Proposal: The Practical Review and System Evolution of Extended Jurisdiction

Article excerpt

Abstract

The court judicial proposal has been used in the administrative justice practice more and more widely, but there is an obvious gap between the ideal prospect of system construction and the real effect. Based on the summary and analysis of the problems with the operation of the judicial proposal system in the administrative justice, this paper makes a deep reflection and discussion on the system itself, and then puts forward the approaches to promote the judicial proposal system in the administrative justice.

Key words: Judicial proposal; administrative judgment; System perfection

INTRODUCTION

Currently, the extension of jurisdiction through the judicial proposal, as an important means of the court to cope with the rapidly increasing social contradictions in the transitional period, has received unprecedented attention in the judicial practice, and has been more widely used in various types of trial activities. However, for a period of time, under the flourishing appearance of the judicial proposal in administrative justice, its potential problems have become increasingly apparent. Therefore, the paper studies the difficulties and embarrassment of the judicial proposal in administrative justice in the practice and seeks the approach to further improvement.

1. PRACTICE DILEMMA: THE GAP BETWEEN THE IDEAL PROSPECT OF THE JUDICIAL PROPOSAL SYSTEM IN THE ADMINISTRATIVE JUSTICE AND THE REALITY

1.1 Imbalance Between the Legal Functions and the De Facto Functions of the Judicial Proposal

Under the current institutional framework, the functions of the judicial proposal in the administrative justice can be classified into the legal functions and the de facto functions. Its legal functions include such four aspects as the guarantee of implementation, the maintenance of rights and interests, the punishment for the violation of laws and the promotion of reconciliation. Meanwhile, with the development of justice practice and the complex of judicial needs, a series of de facto functions have developed. These de facto functions mainly include: (a) The supervision function. Mainly by the means of pointing out the problems such as the problems in administrative normative documents, the defects and irrationality in administrative acts and making suggestions, the court exercises the supervision over the administrative organizations, (b) The function of dispute resolution. For the disputes beyond the purview of the administrative justice, especially those involving the formulation of public policies and the solutions to the problems of a specific party, in which the court should not directly involved in, the court presents specific problems and corresponding solutions to the relevant administrative organizations to promote the effective solution of social conflicts, (c) Prevention function. As the center of various types of administrative disputes, the court can discover the drawbacks or loopholes in the social management through handling administrative cases, and timely put forward the judicial proposal to the administrative organizations, and urge them to improve the management, plug the loopholes, eliminate hidden dangers and prevent the occurrence of similar disputes, (d) Communication function. Through the judicial proposal, the court informs the administrative organizations of the characteristics, movement, tendency, etc., of administrative violation of laws in related areas, and communicate with them about the problems in response to suits, in order to promote positive interaction between the administrative justice and administrative law enforcement.

From the practice of administrative justice, the legal functions of the judicial proposal, the guarantee of implementation in particular, have been ignored to some extent, with the trend of being marginalized. And because policy basis is principled and flexible, the de facto functions of the judicial proposal in the administrative justice expand rapidly, and quickly take the absolute dominance. …

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