According to the provisions of items 3 and 4 of article 49 of the Administrative Litigation Law of the People's Republic of China, the initiation of administrative litigation shall have a factual basis and fall within the scope of the case accepted by the people's court. Item 7 of the second paragraph of article 1 of the Interpretation of the Supreme People's Court on the Application of the Administrative Procedure Law of the People's Republic of China stipulates that enforcement acts made by administrative organs on the basis of the people's court's effective judgment or notice of assistance in enforcement do not fall within the scope of cases accepted by the people's courts in administrative litigation, except where administrative organs expand the scope of enforcement or use illegal methods to carry out them. (2012) Xingtazi No. 17 "Reply of the Supreme People's Court on Whether administrative organs' failure to perform the people's courts' obligations to assist in enforcement falls within the scope of administrative litigation" stipulates: "Acts carried out by administrative organs in accordance with the people's court's notice of assistance in enforcement are legal assistance obligations that administrative organs must perform, and citizens, legal persons or other organizations that are dissatisfied with the act and file a lawsuit do not fall within the scope of the people's court's administrative litigation." Where administrative organs refuse to perform their obligations to assist, the people's courts shall lawfully employ enforcement measures to urge them to perform; where the parties request the people's courts to rule that the administrative organs perform their obligations to assist in enforcement within a time limit, the people's courts will not accept them. However, where a party finds that an administrative organ's failure to perform its obligation to assist in enforcement has caused its damage, and requests confirmation that the failure to perform the obligation to assist in enforcement is illegal and administrative compensation is given, the people's court shall accept it. ”
According to the above provisions, where an administrative organ expands the scope of enforcement or adopts an illegal method in the process of assisting enforcement, or fails to perform the obligation to assist in enforcement, causing losses to the parties, it is not the result of the enforcement of the court order, and the corresponding legal responsibility shall be borne by the administrative organ. When an administrative organ, as the obligor to assist in enforcement, fails to perform its obligation to assist in enforcement, it constitutes an administrative omission, and the parties resolve the issue of confirming the illegality of the act of omission and administrative compensation through administrative litigation channels, which fall within the scope of the case accepted in the administrative litigation, and the people's court shall accept it in accordance with law.
However, it should be noted that the understanding of "the administrative organ's failure to perform the obligation to assist in enforcement causes its damage" should be that when the administrative organ does not perform the obligation to assist in enforcement, and there is no possibility of performing the obligation to assist in enforcement in the future, it has the right to request the people's court to confirm that the non-performance of the obligation to assist in enforcement is illegal and to make administrative compensation; if the administrative organ still has the possibility of assisting in enforcement, the parties can only apply to the people's court to take enforcement measures to urge them to perform in accordance with the law, but cannot file an administrative lawsuit.
The ideas in this article are from:
Administrative Ruling of the Supreme People's Court of the People's Republic of China (2019) SPC Xingshen No. 7682