To sum up, there are three ways to deal with this problem in judicial practice: (1) case review, that is, whether to file an administrative lawsuit or provide other administrative procedures, suspend the trial of civil cases, and resume the trial after the administrative lawsuit or application for administrative procedures is resolved; (2) Do not review, that is, do not review whether a specific administrative act is legal. Of course, we must determine that it has public power and make a judgment accordingly. If the administrative registration act is revoked or changed according to law, the civil ruling shall be corrected through the civil retrial procedure; (3) Avoiding review, that is, not considering whether the specific administrative act is legal, but reconfirming and judging according to the facts and basis of self-verification. Although the above three ways are subdivided, there are still differences between "filing a case for review", "refusing to review" and "avoiding review", that is, the first two ways of review are based on the understanding of the influence of the public power of administrative procedure review on the trial of civil cases, while "avoiding review" completely excludes the influence of the public power of administrative procedure review on the trial of civil cases, that is, regardless of the conclusion of administrative procedures, it will not affect the re-examination of the facts and basis of civil cases.
However, the author believes that only one of the above-mentioned review methods will have the following disadvantages: (1) the increase of litigation cost, the ineffective consumption of judicial resources, the violation of the principle of litigation economy, and the long litigation period will lead to "unfair disputes in the later period." If "no review" is adopted, once the real estate license is revoked, it will inevitably lead to a retrial of civil cases. Although "split trial" can reduce the rate of retrial, it will inevitably lead to the second start of the civil case from the suspension of trial to the resumption of trial, which will inevitably require a lot of manpower, material resources and time and consume judicial resources. (2) It affects the res judicata of the effective judgment and endangers the judicial authority. For example, the above-mentioned "no trial" and "divided trial" lead to frequent start-up of procedures, which will inevitably bring contradictions and conflicts between different courts, even between different courts in the same court. However, "avoiding review" completely gives up the public power of administrative procedure review, which will inevitably lead to legal conflicts between civil judgments and administrative procedures and even administrative litigation conclusions.
Then, how to deal with the procedural relief conflict between civil litigation and incidental administrative reconsideration in divorce cases?
First of all, whether the administrative procedure can be attached to a civil case is a theoretical problem that needs to be solved first, which is controversial in theory and practice.
However, the author believes that there are both theoretical and practical foundations to solve the related administrative subsidiary problems in civil cases. The reasons are as follows: (1) From the origin of administrative litigation and civil litigation, administrative litigation in China is derived from civil litigation and separated. The Administrative Procedure Law of the People's Republic of China promulgated by 1989 follows and draws lessons from the practice of 65438+ in the specific system design and relevant legal provisions (for example, the Administrative Procedure Law of the People's Republic of China stipulates that the shortcomings of this law can refer to the relevant provisions of the Civil Procedure Law of People's Republic of China (PRC) 1982). (2) From the legal point of view of public power, in judicial practice, the reason why we adopt the practice of "no review" and "case review" is mainly due to the misunderstanding of public power, that is, of course, we think that the specific administrative actions made by administrative organs are absolutely authoritative (even if there are major obvious defects), and insist on treating them as legal and effective administrative actions before they are recognized and declared by state organs. The essence of the above-mentioned one-sided understanding is only to admit the absoluteness and exclusiveness of public power, rather than the limitation of public power. In fact, public power is limited. The theory of "limited public power" (relatively speaking, "complete public power") holds that when obvious defects are found, the public power of administrative actions can be excluded. At present, the theory of limited public power is widely adopted in civil law countries, and it is also stipulated that the issue of administrative subordination should be included in the civil case review procedure. (3) Judging from the existing legal provisions, it is not groundless to solve administrative problems in civil cases. For example, according to the rules of evidence in civil and administrative litigation, official documents produced by state organs and social organizations according to their functions and powers generally take precedence over other calligraphy, but they do not recognize the absolute probative effect of official documents; Article 67 of the Civil Procedure Law of People's Republic of China (PRC) also stipulates that legal acts, legal facts and documents notarized through legal procedures may be denied their probative effect if there is enough evidence to the contrary to overturn their notarial certificates. When dealing with cases of personal injury compensation in road traffic accidents, the relevant judicial interpretation issued by the Supreme People's Court also stipulates that the responsibility determination and disability assessment made by the traffic police department can be reviewed with collateral. If you think there is a mistake, you can re-identify it according to the facts and basis identified in civil cases.
From the above analysis, we can see that the issue of incidental review of administrative procedures in civil cases has both theoretical and practical basis.
Secondly, although divorce cases are civil cases in a broad sense, they are still different from ordinary civil cases, that is, divorce cases have strong personal and moral (public law) characteristics. The question is, does its duality of course exclude the possibility of the third party participating in the litigation and examining the incidental administrative issues in divorce cases? There are also different understandings and understandings in theoretical circles and judicial practice.
Debate on whether a third person can be added to divorce cases (that is, a third person cannot and should not be added to solve related civil or administrative problems in divorce cases) and "joint trial theory" (that is, a third person can be notified to participate in litigation in divorce cases, and related civil and incidental administrative problems can also be handled together in the design of procedures and systems). In judicial practice, it is mostly because of the personal nature of divorce (that is, the privacy of private rights) and the right of divorce is the right of formation. The existing marriage law and related judicial interpretations also stipulate whether the third party can participate in divorce proceedings and whether incidental administrative reconsideration can be carried out in divorce proceedings. However, the author believes that there is nothing wrong with allowing a third person to participate in the litigation and jointly solve the incidental administrative problems in divorce cases. The reasons are as follows: (1) From the analysis of the complexity of divorce, the complicated trial requirement of divorce cases refers to the simultaneous handling of property division and child support in principle, but this requirement is not absolutely complicated and cannot be separated. The judicial interpretation of the relevant marriage law stipulates that if the parties to a divorce case only sue for divorce, they should be allowed. The court only hears divorce, and the issues of property division and child support can be prosecuted separately by the parties. In addition, if in a divorce case, the parties reach an agreement to handle some property and debt disputes or child support alone, which is a right punishment, there is no need for the law to prohibit it. It can be seen that the above three compound requests in divorce cases can be separated, and the court can hear the issue of property division separately, which undoubtedly provides a theoretical basis and procedural feasibility guarantee for the third party to participate in divorce proceedings. (2) From the analysis of personal and privacy requirements of divorce, in judicial practice, Judge Fado believes that the main reason why the third party should not participate in divorce proceedings is that divorce cases involve the privacy of the divorced parties and need to be kept confidential. If the parties do not agree, it is not appropriate to let a third party intervene in the trial of the case. However, the incidental review of administrative actions in divorce cases only confirms the legality and effectiveness of the actions, and will not involve the privacy of the divorced parties and will not affect the trial of the case. Even if the trial is not in public, it is not impossible for divorce and property division to be tried separately (as mentioned above), so administrative reconsideration can be carried out together when solving property problems. Therefore, taking the administrative organ as the third person to solve the incidental administrative problems in divorce cases will neither harm the privacy of the divorced parties nor violate the complicated elements of divorce, and it is also feasible in system and program design. (3) From the analysis of the nature of the right to divorce, in judicial practice, another reason why a third person cannot be added to a divorce case is that the right to divorce is a right of formation, that is, as long as one party expresses its will, the trial of a divorce case can begin. Therefore, the nature of divorce right determines that the third party in divorce cases lacks legal basis. However, the author thinks that this understanding is too one-sided, and it should be said that the right to dissolve marriage itself does have the characteristics of the right to form. The handling of issues such as property division and debt commitment is obviously not determined by one party's will, and often requires the consent of both parties or even multiple parties. Therefore, the division of property (including debt commitment) does not have the nature of the right to form, but should still be defined as the right to claim payment. Since it is the right of claim, there is a legal basis for the third party to participate in divorce proceedings, and it also provides a legal basis for solving the administrative subsidiary problem in divorce cases.
To sum up, the author believes that it is also feasible in theory to add a third person to deal with the incidental administrative problems in divorce cases.
Although the administrative organ participates in the litigation as a third party, what is the litigation status of the administrative organ? Is it a third party with independent claim or a third party without independent claim? The author believes that because the administrative organ has no independent claim to the property ownership of civil entities in divorce disputes, its main purpose in participating in litigation is to help one party prove that its specific administrative act is legal and effective. Therefore, its litigation status is essentially an auxiliary third party, and it should be a third party without independent claim rather than an independent claimant.
Finally, how to grasp the standard and degree of incidental review in divorce cases. In order to clarify this problem, we must first accurately define the difference between incidental review and administrative litigation review in divorce disputes. In this regard, the author thinks (1) from the purpose and scope of review, the purpose of incidental review in divorce is only to solve the problem of the ownership of some property (that is, the property of husband and wife or the personal property of a third party) in divorce cases, and its scope is also limited to the legality review of some specific acts (excluding the rationality review), and administrative litigation. (2) Judging from the strength and results of the review, the strength of the incidental review should be limited, that is, it should be limited to the major and obvious flaws in legality (that is, the problems in the subject, procedure, form or content of administrative actions that ordinary civil judges can find after reviewing according to legal knowledge and common sense), while the flaws in the legality and rationality of administrative litigation review should be comprehensively reviewed, and the result of the incidental review is not to revoke or change specific administrative actions. But through the legality review to determine the effectiveness of its evidence, the review of administrative litigation should be based on the situation to determine whether to revoke or maintain specific administrative acts and other different judgments.
Through the comparative analysis of the above two aspects, we can see that the scope and standard of administrative confirmation of real estate license in the name of a third person in divorce cases should be limited to the examination of whether there are major or obvious defects in the legality of administrative acts, that is, once the registration act is found to have major or obvious errors or defects in content (such as registration based on obviously wrong facts) and procedures (such as obvious lack of legal steps, violation of legal order and other serious violations of legal procedures), that is, otherwise, if there is only professional knowledge,
It should be noted that the incidental administrative review in divorce cases should not be included in the scope of review of divorce cases under any circumstances. In the process of divorce property division, if it is found that the parties have filed an administrative lawsuit or exercised other administrative relief procedures, or the issue can only be determined by other state organs on the basis of the right of final adjudication, the trial of civil litigation should still be suspended according to Article 136 of the Civil Procedure Law of People's Republic of China (PRC), and the lawsuit should be resumed after the administrative subsidiary issues are solved.