CCTV's legal report once reported a case in which the bankrupt Sanmenxia Food General Factory allocated nearly 5,500 square meters of state-owned land of the bankruptcy liquidation group to Cui Jianmin in order to ensure the lives of 80 employees. The condition is that Cui Jianmin arranges re-employment for employees. Shortly after the signing of the transfer contract, Cui Jianmin demolished the original factory building and built a commercial house on site for sale. After that, Cui Jianmin had neither plans nor actions to resume production, nor did he pay endowment insurance for 80 employees. When the employees reported the situation to the industrial and commercial bureau, the supervisor of the contract, and asked to supervise Cui, the industrial and commercial bureau said that the execution of the contract had nothing to do with its interests and was unwilling to sue Cui Jianmin for the benefit of 80 employees. According to the relevant provisions of the Contract Law, since the bankruptcy team of the food factory of one party to the contract has been dissolved and the industrial and commercial bureau of the contract supervisor is unwilling to come forward, these 80 employees whose real interests have been damaged have no right to sue Cui Jianmin. As a result, Sanmenxia City Procuratorate adopted the innovative means of "civil public prosecution" to file a civil lawsuit against Cui Jianmin.
In fact, without the so-called judicial innovation, things could have been solved. As an administrative organ, the Bureau of Commerce and Trade has the legal responsibility to protect the interests of the state and the people. Moreover, as a representative of the bankruptcy liquidation group, the Commerce and Trade Bureau was originally a party to this case. At the request of employees, they should have performed their supervisory duties. When it fails to perform its duties and shirks its responsibilities, it is called "administrative omission" in administrative law. According to the provisions of China's administrative procedure law, citizens who have suffered losses due to the inaction of administrative organs have the right to file an administrative lawsuit with the people's court, requesting the court to judge the administrative organs to perform their duties according to law and protect the legitimate rights and interests of citizens. [3]
However, people put aside the existing theories and systems of administrative law and use the so-called "judicial innovation" to solve the problems of administrative law. Such a situation is not uncommon, and this is not a sensational statement. Legal practice has repeatedly reminded us that today's China administrative law not only turns a blind eye to a large number of new administrative legal relations emerging in the construction of administrative rule of law and administrative system reform, but also cannot provide adjustment norms and theories; At the same time, for a large number of administrative law cases, both theoretical and practical circles treat them as other cases, and even choose administrative law for judicial innovation.
Therefore, in today's China, the phenomenon of "absence" and "ignorance" of administrative law is very serious. According to the usual view, this situation is undoubtedly caused by the defects of administrative law itself. In other words, administrative law and administrative law practice are not completely linked, so we can't sum up the theory from practice and then use it to guide practice. However, is it really that simple?