I. Introduction
In August 29, 2014, the Supreme People's court announced the ten typical cases of the people's court to impose a demolition. According to newspaper reports, the Supreme People's court announced the number of cases, for guiding the people's court shall perform their functions according to law, the referee uniform scale, security people's rights and interests is of great significance. Among them. "The referee uniform scale" that is most conspicuous.
The "unified judgment" is the inevitable requirement of the national legal system in the judicial trial. However, the limitation of the law is that it is not adaptive and lagging behind the case. Rule of law experience in many countries indicates that through the case (case), "subtle to interpretation of France and Italy, adapt to the changes in the world, should be used timely passage", it is make up and develop mitigation method limitations.
This paper selects the ten typical cases of the Supreme People's Court of the national court, chose the perspective of legal review of administrative litigation, analysis of the ten typical cases of the legal interpretation of the problem, on the basis of this, try to put forward the future court in the review of such administrative cases may be improved or select a number of directions, in order to benefit the judicial practice of administrative litigation.
Two, case materials finishing
This collection of ten typical cases are at all levels of local court in January 1, 2013 after the effective judgment made by the referee, can be divided into state-owned land on the housing levy and illegal construction demolition of two categories. As the two major categories of administrative cases involving the administrative relative people's livelihood basic rights (real estate), often in the local social impact, and thus become a typical case.
For the convenience, this paper will ten typical cases of this number are as follows: Yang Ruifen v. Zhuzhou Municipal People's government decided the case of the housing levy (No. 1), Hegang v. Huaian city Huaiyin District People's government housing levy compensation decision case (No. 2), Kong Qingfeng v. Surabaya County People's Government housing levy decision (case No. 3), Ai Zhengyun, Sha Defang v. Ma'anshan city rain mountain people's government housing levy compensation decisions (case No. 4), the security action of Shangcheng County People's government housing levy compensation decision case (No. 5), Huo Peiying v. Shanghai Municipal People's Government of Huangpu District housing levy compensation decision case (No. 6), Mao Peirong v. Yongchang County People's Government House expropriation compensation decided the case (7), Liao Mingyao v. the people's Government of Longnan County Housing Demolition case (No. 8), Ye Chengsheng, Ye Chengchang, Ye Chengfa v. Renhua county people's government housing administrative enforcement case (No. 9), leaf Hanxiang v. Zhuzhou Municipal Planning Bureau, Hunan Province, Zhuzhou Shifeng District People's government does not fulfill the statutory demolition of illegal buildings responsibilities (case No. 10).
(a) basic situation
In this collection of ten typical cases, 1-7 number case for compensation, 8-10 number case for illegal construction demolition. In the case of compensation levy, 1 cases involved in the case of the house is levied on the issue of compensation, 2 cases involving the issue of compensation for housing prices, 4 cases involving housing value assessment report of the procedural legitimacy problem, 5 cases involving assessment agency selection, the housing authority is collected, 6 cases involving the issue of housing nature, 7 cases involving the scope of compensation. In the case of illegal construction demolition, 8 cases involving the defendant in the statutory burden of proof is not the case, the case involved in the implementation of administrative compulsory removal of the defendant is in compliance with the provisions of the administrative enforcement law, 10 cases involving the defendant is not fully fulfilled the statutory duty of the demolition of illegal buildings.
Results of referee in the above case, 1 case was decided to maintain the sued administrative behavior, the plaintiff refused to accept the appeal, the court of second instance upheld the judgment of the first instance, 2-5, case verdict revoked the sued administrative behavior, both sides did not appeal, 6-7 judgment of cases, dismissed the action request, both sides did not appeal, 8 cases confirmed in the judgment the sued administrative actions illegal, compensation litigation reconciliation between the two parties, 9 case judgment confirming the sued administrative actions illegal, both sides did not appeal, 10 case ruled that the defendant perform statutory duties, both sides did not appeal. Except for 1 case, other 9 cases the parties not to start the procedure of second instance, which 8 cases because of the sued administrative behavior confirmed illegal after the plaintiff filed by law administrative compensation litigation. But in the end, they to both reconciliation and bring an end to the proceedings.
(two) preliminary analysis
The urbanization construction is one of the important contents of national modernization. Over the past decade, in the process of promoting the development of economy and society in the process of promoting economic and social development by the government led urbanization, all kinds of social relations are constantly being reconstructed and reconstructed, and the social contradictions are constantly being raised or worse. "Since the beginning of the 21st century under the name of 'transformation of the old city' of large-scale demolition, one-sided pursuit of GDP caused by the deteriorating living environment, in the 'public interest' need under the expropriation of rural collective land leads to a large number of landless farmers become 'refugee', and extremely inequitable compulsory education system under the generation of a large number of new generation illiterate serious social problems, along with government officials are serious, structural corruption, government administrative action validity by the general suspicion the public." By sorting out the relevant facts, we can see that this collection of ten typical cases is in such a big social background, and only put them under the background of such a society, we can interpret their legal significance.
1 the legal protection of real right of real estate. This collection of ten typical cases are related to real estate and real estate. The 2007 property law is the basic law to protect the property rights of individuals. The forty-second provisions of the act: "the need for public interest, in accordance with the authority and procedures prescribed by law can be collected all the land and units, individual housing and other real estate." In order to regulate the behavior of the government, the State Council promulgated the "state-owned land on the housing levy and Compensation Ordinance" (State Council Decree No. 590th), the legal requirements of the government's collection of acts, procedures, the rights and obligations of the people are clearly defined. In June 2011 the administrative compulsory law on the administrative organs to make the administrative compulsory measures and the implementation of administrative compulsory execution to make a number of binding provisions, the court for the real estate property rights of the legal protection provided a clear legal basis. This shows that the state has provided a relatively complete legal framework for the court to protect the real right of real estate.
2 substantive settlement of disputes. From the case materials, we can seen in ten typical cases of the demolition, except for 1 case, the other 9 cases did not enter procedure of second instance, under the background of today administrative litigation "three high and one low" (the appeal rate is high, the complaint rate high, petitioners rate high, the low rate of interest litigation), this guide has very positive legal significance. Through the administrative litigation, the court only has the nature to solve the administrative disputes, the administrative litigation law of the legislative purpose can be achieved. Because, citizens, legal persons or other organizations to initiate administrative proceedings, the fundamental purpose is to request the judicial power to protect their legal rights and interests of the administrative acts of the court in the administrative proceedings in the administrative law, is only the judicial power to protect citizens, legal persons or other groups of legitimate rights and interests of a collateral. Therefore, in the administrative proceedings, the purpose of the legislation to add "to resolve the administrative dispute" is very appropriate.
3 the focus of the review of the court. In the demolition of ten typical cases, we can see clearly, rights protection is always court in the review of the administrative action process with a basic criterion, the expropriation and demolition ten typical cases of Central Plains against 90% of the win rate can also prove this point. From the magistrates' courts, the reasons and ideas, the court review of the center of gravity is alleged administrative behavior and administrative organs to make the application of law is legitimate. Therefore, the court benchmark problems and methods in legal review is attracting more and more attention all over the world. We know that the administrative litigation is the review of the administrative organs according to the law of the case to deal with the behavior is legal, it includes the fact that the law applies to two aspects of the content. In principle, in fact, the court should try to respect the judgment of the facts, and the law applies to the understanding and application of the law, especially the general clause and the legal concept of the legal profession. The following discussion will focus on this issue.
Three, the reference and method of legal review
(a) the framework of legal review in the administrative proceedings law
In administrative litigation, the court mainly from the two aspects of the facts and the law of the administrative action for legal review. For the latter, the administrative procedure law to build a three levels of the legal review framework:
1 legitimacy review. Administrative procedure law fifth provisions: "the people's Court of administrative cases, the specific administrative act is legal review." The so-called legal, generally can be made in accordance with the law, the interpretation of. In the original purpose of the legislation, "the people's court to try the administrative case, is to examine the legality of specific administrative acts. As to whether the specific administrative acts made by the administrative organs in the scope of law and regulations are appropriate, the people's court can not replace the administrative organ to make a decision, which, in addition to the administrative litigation law, is appropriate, which is not legally reviewed by the court.
2 legitimacy review criteria. Under the administrative procedure law, Article 5 of the general rules, the article 54 of the (a) positive provisions of the review of the legality of the benchmark: (1) evidence; (2) the applicable law and regulations are correctly; (3) with legal procedures. Article (two) the review of the validity of the provisions of the reverse is: (1) the main evidence is insufficient; (2) the application of laws and regulations is wrong; (3) the legal proceedings shall be (4) beyond the authority; (5) abuse of power. In addition, in the article (three) and (four), the provisions of the "non performance or delay in the performance of statutory duties" and "administrative penalties for the failure of justice," the two supplementary legitimacy review criteria. On the basis of the legal review, some scholars put forward the criticism, some scholars believe that: "although the provisions of the administrative procedure law of fifty-fourth basic standards of administrative legality judgment, a judicial review to change nature conditions, but the principle of legality review still can only be considered in our country the intensity of administrative review, preliminary definition of shallow layer, it can not solve the deep-seated problems of the intensity of judicial review, it is even more difficult to put this principle as the establishment of China's administrative litigation system and the standard strength of trying, it only reflects the simple view of simple people and views on the relationship between justice and administration, as for the review show strength did not touch this relationship in the core system in administrative litigation, this simple tendency to some degree marks time legislators lack of insight on this issue." However, in the judicial practice, the legal review of the fifty-fourth provisions of the administrative procedure law does not seem to encounter many difficulties.
3 legitimacy review method. On the basis of legitimacy, there are some methods, such as the evidence review, the use of the facts, the legal interpretation and the legal application of the law. The former is provided by the administrative procedure law thirty-first to thirty-sixth, and the latter by the administrative procedure law fifty-second, fifty-third.
Legal interpretation is particularly important in all of the legal review methods. In this paper, the legal interpretation is the legal norm is applicable to the case process because of its uncertainty and by the application of the specific facts to determine the interpretation of the facts. There is no legal interpretation without a case, so it is different from the legal interpretation of the legislative law. In legal application, whether it is the administrative organ or the court, in case of the general terms and the fact that the law should be combined with the case, the use of legal interpretation technology will be applied to the case. In administrative proceedings, the court has the right to explain the law to the administrative organs of the results of the interpretation of the law, if it is considered that the administrative organ is wrong, it can use its own legal interpretation of the.
(two) the legal review of the case: the legal interpretation
In the demolition of ten typical cases, the court is basically in the provisions of the administrative procedure law with a review of the legal framework to the sued administrative actions for legal review. The issue to be further discussed here is that, in the third level of the legal framework, how the court applies the legal review method, that is, the legal interpretation.
As mentioned before, the legal interpretation is usually related to the general terms of the law and the application of the legal concepts in the case of the case. In this collection of ten typical cases, the legal interpretation of the court encountered in the process of legal review, mainly in the following three aspects:
1 Public interest. The third clause of the Constitution: "the state may, in the interest of the public, the private property of citizens in accordance with the law to impose expropriation or requisition and compensation."." But what is "public interest", the constitution is not clear. Public interest is a constructed by rules and cases of conceptual framework, its core part belongs to require demonstration and no words and a significant public interests, like spectra generally, it around to extension in the process of gradually darken, until dissolved into the darkness. And the function of rules and cases is that public interests should be in the spectrum one scale formed the "cliff effect". The state-owned land on the housing levy and Compensation Ordinance, "Article 8 to enumerate and reveal all the details in terms of legislation, on the" public interest "as the preliminary definition, but it still have to keep the uncertain legal concepts such as the" infrastructure "," social welfare "and affordable housing project", waits for organs in the case explanation.
Case case case case No. 3 in the expropriation and demolition ten typical cases, such as case 1 "Shennong road construction project", 2 cases of "Yinchuan Road East of the old city reconstruction project", the "city of Si Si River Road East Forestry Bureau area and Si River Road West of the ancient city of Lu Bei area transformation of the old city", the 4 "quarrying town redevelopment project", No. 5, "winter jasmine and Taiwan shantytowns project", No. 6 in the "old city reconstruction needs" and No. 7 in the case of "Bei Hai Zi scenic area construction projects can be associated with the public interest. In the 7 cases, case No. 1 can be classified as "organized by the government to the implementation of energy, transportation, water conservancy, and other infrastructure construction needs, case No. 7 can be classified as" organized by the government to the implementation of science and technology, education, culture, health, sports, environmental and resource protection, disaster prevention and mitigation, cultural relics protection, social welfare, municipal utilities and other public utilities need "and other 5 cases belong to" by the government in accordance with the relevant provisions of the law on urban and rural planning organization implementation focus on dangerous, poor infrastructure, such as lots of old city reconstruction needs.
Shennong No. first in the case of "road construction projects" in the public interest, stick out a mile. So the court held that: "Yang Ruifen houses in Shen Avenue construction projects within the red line, although Yang Ruifen entire house expropriation beyond the Shenlong avenue of the special planning, but the collection of the Department of housing and public interests need..." But in case No. 7 "Bei Hai Zi scenic construction project is consistent with the public interest, still need to explain whether it has the nature of public utilities, and other 5 cases of the transformation of old urban areas whether" dilapidated houses and infrastructure behind "elements, the court should be as the direction of further legal review. For example, there is no "dilapidated houses and infrastructure backward situation in the old city, the government will not collection of private housing," state-owned land on the housing levy and Compensation Ordinance "to make such a provision, aimed at collection purposes is strictly limited to the scope of public interest. Therefore, the court in the legal review of" public utilities "," dangerous concentration, infrastructure behind "these uncertain legal concept, can not be regarded as missing, slurred over. However, in these 6 cases, we have not yet found the court's efforts in the legal review.
2 legislative intent. The purpose of legislation is to establish the "soul clause", which is the basis of the design or modification of the law rules, which is dominated by the interpretation of the law. "The aim is to be the creator of all laws. Each rule of law is derived from a purpose, namely, the fact that a matter of fact." Administrative organs in an interpretation of the law, its content should meet the above requirements; similarly, the court in legal review to the sued administrative actions, also want to by legislation to guide and regulate, can not be free to the purpose of legislation can take into account. "State land on housing levy and Compensation Ordinance," the first rule: "in order to regulate the state-owned land on the housing levy and compensation activities, safeguard the public interest, to protect the legitimate rights and interests of housing ownership, the development of this ordinance." In this article, although the "protection of the legitimate rights and interests of the housing ownership" is placed in the "maintenance of public interest", but, from the 7 compensation cases, the direction of the legal review is very clear, that is, in the maintenance of public interest to achieve the premise, to maximize the realization of the legal protection of housing ownership of the legislative purpose. Such as in case 2, the court held that: "through the analysis of evidence in this case, can be identified what just selected compensation for property rights exchange, but sued as determined in the compensation decision is monetary compensation, against the right to choose what just compensation." Court from the relevant law extract compensation for expropriation compensation is the statutory right to choose, and in this case the plaintiff compensation options have been infringed by the decision to withdraw the sued administrative behavior. In the case of expropriation compensation, "the protection of the legitimate rights and interests of the housing ownership" is the most important content of the housing compensation price is determined. As in case 3, the court said: "the compensation for the value of the house is not less than the housing levy decision announcement was imposed on the real estate market prices. According to the spirit of legislation, the compensation for the expropriation of housing, should refer to the nearest location of new housing prices, to be imposed after the housing is imposed, the living conditions, quality of life is not reduced to appropriate." Because the defendant made a compensation decision does not comply with the spirit of the legislation, the court decision was revoked.
The first rule of administrative compulsory law stipulates: "in order to regulate the setting and implementation of administrative compulsory, the administrative organs shall protect and supervise the performance of duties, safeguard the public interests and social order, protect the lawful rights and interests of citizens, legal persons and other organizations." The court of ninth cases referee essence, embodies the purpose of administrative compulsory law legislation on judgment guidelines. As the Supreme People's court in the typical sense of the emphasis, these typical cases, the full embodiment of the administrative judicial supervision of the government to protect the basic rights and interests of the important functions of the government. Even for illegal construction of the mandatory removal, but also strictly follow the procedural requirements of the administrative compulsory law, before the removal of the people should be informed of their own removal, in the local post announcement and not in the demolition of the night."
3 breach of statutory procedures. Fifty-fourth the provisions of the administrative procedure law, administrative acts in violation of the statutory procedures, the court may revoke the decision. However, from the attitude of the Supreme People's court, the administrative acts in violation of the statutory procedures, not of course should be revoked. 3. Therefore, the court in legal review of administrative cases, the basic direction is attention to the distinction between primary and secondary legal procedures, who sued administrative behavior in violation of the statutory procedures, damage the legitimate rights and interests of the plaintiff the constitute of judgment for rescinding the reason and vice versa. Such as in case 4, the court held that: "from the existing evidence in this case, Yushan District House expropriation departments in Anhui Minsheng real estate assessment Co., Ltd. of quarrying Jiuhua Street No. 22 made commercial real estate market value assessment report, not the contents of the report timely delivery of Ai Zhengyun, Sha Defang and announcement, resulting in Ai Zhengyun Sha Defang on the price of real estate assessment for review and apply for real estate price evaluation commission of experts to identify the loss of rights, is a violation of legal procedures." And on No. 5 cases, the Supreme People's court in the "typical" Interpretation: "from the two angles of legal procedures, legal entities of clearly pointed out compensation decide the existence of a mishap. In terms of the legality of the procedure, according to the relevant provisions, the decision to make a decision to formally determine the basic procedures of the assessment agencies; in the substantive legitimacy, the emphasis on compensation for the decision of the people must be recognized."
It must be pointed out is, administrative procedures have help in the implementation of the administrative substantive law and justice, based on the sued administrative acts in violation of the statutory procedures, and the decision to withdraw the is based on the jurisprudence. However, the administrative procedure has its own independent legal value, attract the administrative relative person to resolve the dispute through legal procedures, so even if the sued administrative actions in violation of the statutory procedures for secondary, court should not be made rejected petition judgment. Although the decision to dismiss the lawsuit takes into account the administrative costs and efficiency, but often criticized by the community and the parties, more dilute the administrative authorities to comply with the law of the law. Therefore, the court should make full use of the legal interpretation technology, the scope of the minor statutory procedure, and the legal value of the independence of the administrative procedure.
Four, can improve the direction of the legal review method
Overall, and the expropriation and demolition ten typical cases of Sino French Institute for legal review direction is correct, does not exceed the provisions of the administrative procedure law "three levels of legal review framework", the method of legal interpretation also in the flickering can be used, but they can be improved also cannot be ignored.
(1) proportional principle
The principle of proportionality is one of the principles of the law of the foreign public law. In Harbin province Heilongjiang City Planning Bureau and Heilongjiang HSBC Industrial Development Co., Ltd., the administrative punishment of the dispute, the Supreme People's court for the first time to introduce the principle of proportionality. Although our country has not explicitly used the principle of proportion in the formulation of law, the idea of the proportion principle is very rich. Such as the second fourth provisions of the Administrative Punishment Law: "setting and implementation of administrative punishment must be based on the facts, and the facts, nature, circumstances and the degree of social harm." Again, the administrative compulsory law fifth provisions: "the establishment and implementation of administrative compulsory, it should be appropriate. The use of non coercive means to achieve the purpose of administrative management, and shall not set up and implement the administrative compulsion."
The law of administrative intervention, even if there is no statute of the provisions of the law, the proportion principle is not without the application of space. Such as "state-owned land housing levy and Compensation Ordinance," the second provisions: "in order to the needs of public interest, the expropriation of state-owned land units and individuals, should be levied on housing ownership (hereinafter referred to as the people) to give fair compensation." Although the provisions of this article is to "public interest" and to give "fair compensation", but the government does not, of course, can make a decision to impose. Because housing is the most basic material for the survival and development of personal property, it is necessary for the government to realize the public interest, if there are other means to meet the needs of the public interest, the government will not make a decision. But in these 7 cases, there is no court to introduce the principle of proportionality in the case of administrative cases.
In some cases, even if the collection is the last, the only way to achieve the public interest, the government should also comply with the principle of proportionality in determining the content of the levy. Such as case 1, the defendant in the case of the project planning red line outside the house. For this part of the housing levy, the court held that: "if only the demolition of the planning red line within the part of the housing, not to remove the planning red line outside the scope of part of the house human become dangerous, lost the role and value of the housing should be." In the process of making this judgment, there is no room for the principle of proportionality. Unfortunately, the court has not demonstrated the principle of proportionality, which has weakened its persuasive power. The Supreme People's court in the publication of the "typical" in the sense that: "the government for practical reasons, such as residential security considerations, will not be included in the planning part of the collection, the act reflects the people-oriented, is conducive to the collection of work smoothly. The legitimacy of the decision of the people's court for approval."
In other words, the government did not determine the scope of the collection in accordance with the planning red line, but considered the practical, residential security and other factors, the court can be determined to determine the legality of the collection, which is logical, legal argumentation is not enough. If the introduction of the principle of proportionality to prove, perhaps can make up for this problem.
(two) the reasons for the judges
The referee said, is the most basic requirements of judicial justice. In the legal review, when the court agreed that the administrative organs of the interpretation of the legal norms or to explain with their own interpretation of the administrative organs, it must be through the referee to prove it "agree" or "substitute" for the reasons, in order to persuade both parties, in particular, to be more important to the parties.
The Supreme People's court through judicial documents in China open judgment, essentially is a judge forced attention and strengthening the mechanism of judgment and reasoning of the method.
In this collection of ten typical cases, the referee reason can improve the place and a lot of. Such as the No. 1 case, "dangerous" this concept appeared in the "state-owned land on the housing levy and Compensation Ordinance" Article 8 paragraph (5), is "old city reconstruction" qualifier. And in this case due to the need of "Shen Avenue construction project and make the decision to impose is clearly according to the provisions of Article 8, paragraph. Here, the court did not further explain the "dangerous" in Article 8, paragraph can also support the defendant made the decision to impose. If the courts sometimes need to comply with the requirements of the law, then, "as the court or judge in the case of the judge to give such an answer, it is clear that the use of a certain legal method (interpretation or demonstration), so that the formation of the case to give up with the established rules as the referee's benchmark is still in line with the formal requirements. As case tenth case, the court finds that the defendant has not fully performed the statutory duties of the demolition of illegal buildings, the defendant to perform the statutory duties. In the fifty-fourth section (three) of the administrative procedure law, only the "non performance or delay of performance" is only "not fully performed". In this regard, the court shall judge according to law, and must use the legal interpretation technology, the fifty-fourth article (three) of the administrative procedure law to fully and logically demonstrate, it is convinced that the fifty-fourth article (three) of the administrative procedure law should be not fully fulfilled. Unfortunately, in the case of the court in the case of the referee did not do this.
(three) the way of judging
The referee, referee is the court of law main content disposal of the administrative action of the. The referee as a judge to the side of the toolbox, placed inside a revocation decision, redo the decision, execution of judgment, alteration of judgment, judgment and confirmed rejected petition judgment etc., according to the cases of administrative hearing the case, the judge from choice the proper way to judge, a legal disposal to the sued administrative actions. In choosing which kind of judge, the judge has a large space of judges. The appropriate method of judging is not only beneficial to the substantive settlement of disputes, but also helps to reduce the administrative costs, and avoid circular litigation.
Such as the fifty-fourth article (three) of the administrative procedure law to fulfill the decision, the main point of view on the school is considered to be a procedural referee, the court can not fulfill the statutory duties of the administrative organs to make "instructions", but in the judicial practice of the implementation of the principle of effective protection of substantive justice is not uncommon in the implementation of the principle. In this collection of ten typical cases, third cases to the court to provide an opportunity to judge the way, but the court gave up or missed. In this case, the court held that: the defendant in the case of the defendant in the formulation of compensation scheme, the choice of monetary compensation, the main house is levied in accordance with the plot of the multi-storey property rights exchange resettlement housing price concessions, preferential price is clearly lower than the market price. For property rights exchange, the house is beyond the main room to compensate for the area of compensation by the people, more than 10 square meters in accordance with the preferential settlement price, more than 10 square meters outside the house in accordance with the market price; the main housing area is greater than the size of the housing area, according to the placement of the housing price increase 300 yuan /m2 standard for monetary compensation. The compensation price of the house is clearly lower than the purchase price of the capital of the person who is being collected. The above provisions of the compensation scheme is to be imposed on the people who are in a fair." The court found that the compensation decision was unfair, because it is not an administrative penalty decision, it can only be decided to withdraw, the defendant to make a compensation decision. Actually, this compensation whether fair determination, not exceed the judge ability. In most cases, the judge is can make impartial judgment. As some scholars believe that: "in view of the division of judicial power and administrative power, the court should be cautious about the judicial change power, but it can not be completely ruled out. As to the facts, the law provides a clear, does not involve the complexity of discretion, the court has the ability to judge the situation, the people's court can also make judgments, and on the basis of the judgment to make a corresponding change. This is not only the purpose of administrative litigation, but also the urgent demand of the judicial power in social reality, reasonable, reasonable balance of power. Therefore, the current administrative penalties can be significantly unfair, the court can change the decision to change the 'extended to' administrative act is obviously inappropriate, the court can change the decision. "It was clear that the'. Face problems in case No. 3, "the judge should put forward such a question to myself: if lawmakers themselves encounter legal fabric on the fold, they will how to flatten it? It's simple, the judges have to do so as well as lawmakers. A judge can not change the law of woven material on the fabric, but he can, also should fold ironing." Third, of course, this fold ironing flat ", still need to judges have excellent legal interpretation technology and reason description skills, convincingly from the existing administrative litigation law system guided out, which is in accordance with the law referee inevitable requirement.
Five, conclusion
Overall, the provisions of the administrative procedure law "three levels of legal review framework application, the court of the weak points of the current focus on the third level. At the level of the legal review, the legislative intent has established the basic direction of its legal review. At the same time, the use of the principle of law (principle), the reason for the referees and the way how to innovate under the law is the direction of the court in the future.
Judge in the process of deciding the case, on the facts of guiding case with the Supreme People's Court published the same or similar situation should be guiding reference case. Furthermore, it can be reference to similar cases of judges of the courts at all levels, in order to grasp the unity of the scales of justice. 4 although this collection of ten typical cases of demolition not published by the Supreme People's Court of guiding cases, but it and the latter may have approximately the same functions, at least we should not deny its reference function.
Because, to give full play to the reference function of the non directive cases, it can be further closer to the Supreme People's court to the unified referee scale.