중국 행정소송상 의무이행소송에 관한 검토

In Chinese Administrative Procedure Law, in according to concrete condition, the People's Court can give decision upon judgement maintaining a specific administrative acts, rescind a judgement, partial rescind a judgement, judgement for new performance order, and judgement of specific performance. Although Chinese Administrative Procedure Law not provides the form of lawsuit in directly, but it concludes the form of judgement, so we can understand that Chinese Administrative Procedure Law apply the system of lawsuit for performance of obligation. Lawsuit for performance of obligation belong to action of performance, and it has the nature of prestation and negative feature in purpose of action. So, in administrative law realm, we can apply it widely. If administrative counterpart institute lawsuit for performance of obligation, the lawsuit must satisfy following requisites: (1)the existence of application of administrative counterpart; (2)the application must conclude a specified performance for administrative agency; (3)the existence of injury or it's possibility in refusal or nonfeasance of administrative agency; (4)without resonable reason, administrative agency have no action; (5)the lawsuit must satisfy the term condition; (6)the lawsuit for performance of obligation must be useful in that case. If lawsuit for performance of obligation was instituted by administrative counterpart, the People's Court will review the existence of application right and the ripeness of the case. According to the theory of specific judgement, the judgement for lawsuit for performance of obligation must concludes specified contents of performance for administrative agency. The judgement for performance of obligation distinguish from the judgement for new performance order in conception. The judgement for new performance order wants a condition that reverse of original administrative action. In the judgement for performance of obligation, the People's Court must fix the period of performance of obligation. At that time, the People's Court will apply an legal limits of time or a resonable period in written judgement.