| In administrative litigation, the preventive protection mechanism aims to provide effective judicial protection to administrative counterparts. The Chinese Administrative Litigation Law and relevant judicial interpretations currently provide four institutional measures with the function of preventive protection, namely the stay of execution, advance execution, property preservation, and behavior preservation. However, these preventive protection mechanisms have not played an important role in judicial practices because the relevant provisions have the dual purposes of safeguarding public interests and protecting individual interests and the triple functions of supervising administrative organs in administration by law, ensuring the smooth realization of administrative actions, and protecting the rights and interests of administrative counterparts from irreparable damages. Furthermore, no differentiated legal rules have been stipulated for these different functions, the application procedures for different measures are not well laid down, and the constructive elements of discretion prescribed in law are incomplete.All these factors have further reduced the effectiveness of preventive protection mechanisms. It is suggested that, in the future revision of the Administrative Litigation Law, China should integrate various institutional measures for preventive protection, further clarify the constructive elements of discretion and the corresponding models of judicial review, refine the procedures of judicial review and introduce an appeal procedure, so as to better satisfy the need of administrative counterparts for preventive protection. |
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