The game of rights and power

Author: Hu Xiaohua
Publisher:
Publish Date: 2005-01-01
Features: The book "The Contest of Rights and Powers – A Comprehensive Discussion on the Amendment of Administrative Litigation Law" is a collection of research findings from the first National Administrative Litigation Theory Symposium, jointly organized by the Administrative Litigation Law Committee of the Chinese Society of Procedural Law, the Research Center for Administrative Litigation Law at Xiangtan University, and the School of Law at Xiangtan University, held from June 25 to June 27, 2004. The amendment and improvement of the Administrative Litigation Law, as the central theme of the symposium, was attended by renowned scholars in the field of administrative litigation law, authoritative experts from other disciplines, and relevant individuals from judicial practice departments. The papers submitted covered numerous flaws and deficiencies in the content or form of the Administrative Litigation Law, with some presenting profound insights, innovative perspectives, and a high level of theoretical and academic rigor, demonstrating significant practical guidance value.
Based on the scope of the topics, the book is divided into five parts:
(1) Foundational Part: From the perspective of the relationship between the Constitution and administrative law, it focuses on explaining the fundamental and prerequisite theoretical categories that must be clarified in the amendment of the Administrative Litigation Law, such as the relationship between administrative litigation and the Constitution, the relationship between administrative litigation and constitutionalism, and the purpose of administrative litigation.
(2) Current Situation Part: Starting from the actual state of the implementation of the current Administrative Litigation Law, it deeply analyzes the causes of the (predicament) of China's administrative litigation system and proposes relevant solutions.
(3) Amendment Part: Based on the institutional gaps in administrative litigation, it specifically argues for the positioning of the amendment of the Administrative Litigation Law, the scope of adjustment, the scope of cases, the qualifications of the defendant, the burden of proof, and the judicial power to alter decisions.
(4) Construction Part: With institutional innovation as its fundamental objective, it breaks through the textual paradigm of the current Administrative Litigation Law by absorbing and learning from effective practices and experiences of Western countries, tentatively proposing the establishment of systems such as administrative public interest litigation, limited mediation in administrative litigation, and administrative case precedents.
(5) Other: This part mainly collects opinions or suggestions related to the amendment and improvement of the Administrative Litigation Law but outside the aforementioned content.
The successful holding of the first National Administrative Litigation Theory Symposium and the smooth publication of this book are the result of joint efforts. Here, we sincerely thank the Chinese Society of Procedural Law for its strong support and active promotion of the theoretical research on administrative litigation law. We also extend our heartfelt appreciation to Professor Chen Guangzhong, a supervisor of doctoral candidates at China University of Political Science and Law and the president of the society, for his warm care and sincere encouragement. We are grateful to Professor Yang Haikun, a supervisor of doctoral candidates at the School of Law at Soochow University and the director of the Administrative Litigation Law Committee of the Chinese Society of Procedural Law, for his long-standing close attention and valuable guidance. We also thank all scholars, colleagues, and representatives from various sectors who are concerned about the development of China's administrative litigation system. Without their help and support, the completion of this book would have been impossible.
If the formulation of the Administrative Litigation Law is the legal confirmation of democratic politics under specific historical conditions, then the amendment of the Administrative Litigation Law is the inevitable requirement of democratic politics in a changed context. The intrinsic motivation for this requirement lies in the rational contest between rights and powers and the resulting dynamic balance between them. We look forward to and firmly believe that the development of China's administrative legal system, driven by the amendment of the Administrative Litigation Law, will continue to broaden along the path of constitutionalism!
Hu Xiaohua
November 28, 2004
At Yangnan Studio, Xiangtan University