Abstract:
The repeative administrative act is an important problem which produces the difficult situation of “circular litigation” in practice and is theoretically closely related to the function maintenance of res judicata and the guarantee of revocation of judgment effect. As for the judicial response to repeative administrative acts, the current law clearly defines the regulation path of “rejudgement + coercive measures”. Meanwhile, through the identification of the nature of repeative administrative acts, there is also room for the application of compulsory execution when a new administrative act is made on the basis of a judgement. Either “rejudgement + coercive measures” or compulsory execution is applicable. However, the fact that the former path is clearly defined by judicial interpretation has led to the latter path being basically not adopted in practice. Through the analysis and comparison of the two paths, it is found that the path of “rejudgement + coercive measures” has defects such as difficulty in protecting citizens’ rights and interests, inability to avoid “circular litigation” and weakening or even nullifying the function of res judicata. It also has fungibility in institutional functions and should be abandoned. The single regulation path of compulsory execution is not only better suited to the nature of repeative administrative acts, but also can avoid the dilemma of “circular litigation” while safeguarding the legitimate rights and interests of citizens and effectively maintaining the function of res judicata. Additionally, it can provide a logical explanation for theoretical disputes such as whether the subject matter of the two actions is the same and whether the judgement for rescinding has enforcement power. Therefore, it should be established as the only path for regulating repeative administrative acts.