中國行政訴訟的法律實效研究
發(fā)布時間：2018-07-17 20:33
【摘要】：本文從實踐邏輯出發(fā),論文嘗試通過實證分析和邏輯論證,考察行政訴訟的法律實效,分析影響行政訴訟法律實效的各個因素,并進一步探求改善行政訴訟法律實效的可行路徑。全文分導(dǎo)論和正文共七個部分,其中正文有六章。第一章是關(guān)于行政訴訟法律實效的一般理論,主要是從法律實效的概念和與法律效力、法律實現(xiàn)這兩個相關(guān)概念的辨析入手,討論行政訴訟法律實效的概念、考察方法、影響因素。中國行政訴訟的法律實效就是對行政訴訟在中國實際運行狀態(tài)的考察和研究。其次,根據(jù)行政訴訟法律實效的關(guān)注對象,可以從心理學(xué)、社會學(xué)、經(jīng)濟學(xué)三個角度對行政訴訟法律實效進行考察和分析,并且這三個角度不能截然分立,而是相互貫穿、共同解釋行政訴訟的法律實效。最后,參照影響法律實效的主要因素,筆者認為影響中國行政訴訟法律實效的主要因素有以下四方面:一是制度因素。主要是考察和分析制度因素與行政訴訟立法目標的關(guān)系。二是權(quán)力結(jié)構(gòu)因素。主要從國家權(quán)力關(guān)系的維度探究我國行政訴訟的獨立地位、審查深度、司法權(quán)威的廣度和深度。三是行為主體因素。主要是考察和分析訴訟各方對行政訴訟的理解、運用的動機和目的及對該法發(fā)展的愿景。四是實施環(huán)境因素。主要考察和分析行政訴訟的實施環(huán)境與行政訴訟結(jié)案方式的關(guān)系。第二章是對中國行政訴訟立法目標的實效考察和制度因素的分析。通過對行政訴訟立法宗旨的解讀和對司法實踐的考察,筆者認為,中國行政訴訟法律本身的明確性、合理性和可操作性程度影響了行政訴訟的司法實踐。行政訴訟立法目的中規(guī)定的保護相對人合法權(quán)益在實踐中已經(jīng)完全被“徹底解決行政爭議”的目的所掩蓋,而“徹底解決行政爭議”的立法目的在實踐中并不是糾結(jié)于個案糾紛的徹底解決而立足于整個社會的司法效果和社會效果統(tǒng)一的追求,是對現(xiàn)實中多種利益的平衡。在行政審判的具體過程中法官追求的目標復(fù)雜并且多元,中國行政審判的權(quán)威性和公信力也在司法對各種效果的疊加追求中逐漸淪為雞肋。第三章是對行政訴訟獨立性的實效考察與權(quán)力因素的分析。中國的行政訴訟是囿于權(quán)力結(jié)構(gòu)中的訴訟,權(quán)力因素是影響行政訴訟司法實踐的關(guān)鍵因素。中國的法院既是一個中立的司法機構(gòu),又是一個官僚機構(gòu),黨委、地方政府、法院之間有千絲萬縷的聯(lián)系,法院自身既受控于體制之中,又得益于這個體制。行政訴訟嵌入在整個國家權(quán)力結(jié)構(gòu)之中,行政審判的裁判結(jié)果同地方政府政績息息相關(guān),審判結(jié)果在追求司法正義的同時還要符合黨的大政方針和適應(yīng)地方政府的總體規(guī)劃以滿足法院自身利益的最大化。第四章是對行政訴訟各方訴求的實效考察與主體因素的分析。主要探討影響行政訴訟法律實效的主體因素,嘗試從法官、律師、行政相對人、行政機關(guān)的角度考察和分析行政訴訟參與各方對行政訴訟的理解、適用、看法和建議。通過田野調(diào)查和群眾訪談等從行政訴訟參與人的視角分析研究行政訴訟的運作狀況,關(guān)注行政訴訟中主體的真實感受。并從行政訴訟各方對糾紛解決途徑的選擇、對行政訴訟的認知、法律意識以及行政訴訟中弱者的策略四個方面分析了行政訴訟運作中各方的參與邏輯。第五章是對行政訴訟結(jié)案方式的實效考察與實施環(huán)境因素的分析。中國的行政訴訟受司法實施環(huán)境的影響,不能充分發(fā)揮司法的獨立性,對行政爭議的解決實質(zhì)上是以行政訴訟為中介的柔性解決。中國的行政訴訟深深地嵌入在權(quán)力結(jié)構(gòu)的漩渦之中,要單靠“非黑即白”的行政裁判完全解決行政爭議是行政審判“不可承受之重”。法院在行政訴訟中扮演的不僅僅完全是裁判中立者的角色,也是各方面利益的協(xié)調(diào)者,法院小心翼翼地通過一系列“變通”的方法,以提建議、和解、向黨委求助等多種方式化解行政審判中的難題,以期維護法院的權(quán)威和司法的公正。第六章是對改善行政訴訟法律實效的路徑分析。通過前面對行政訴訟法律實效的考察和對法學(xué)理論上一般提升法律實效手段的分析,筆者認為主要可以從以下五個方面改善和提升行政訴訟的法律實效。第一,樹立行政審判的權(quán)威。通過對行政訴訟參與各方行政審判基本立場的考察和對“和解撤訴”滿意度的調(diào)查,提出“行政判決”具有其他非司法方式不可比擬的作用。必須通過減少行政訴訟的隨意性和提高行政案件判決結(jié)案的比例來樹立行政審判權(quán)威;第二,規(guī)范司法實踐中的“和解撤訴”。根據(jù)考察和行政訴訟各方對“和解撤訴”的選擇、看法和建議,理出規(guī)范“和解撤訴”的思路,提高行政訴訟法的可操作性;第三,提升行政裁判的社會認同。行政訴訟的過程是一個高度專業(yè)性和技術(shù)性的過程,行政訴訟的過程和結(jié)果很容易受到民眾的曲解和誤導(dǎo)。通過加強行政訴訟中的民意溝通和律師在訴訟中的釋法說理可以有效提升行政裁判的社會認同;第四,尊重行政訴訟的階段化發(fā)展。中國行政訴訟制度的演變是一個漸進性過程,本次修法尊重了行政訴訟發(fā)展的階段性,采取了循序漸進的改革方式。根據(jù)主體的不同需求和制度供求的不對稱性所產(chǎn)生的高成本性和非均衡性可以對行政訴訟制度的未來發(fā)展作一些預(yù)測。第五,順應(yīng)社會治理模式的發(fā)展。行政、司法與民眾的良性互動是行政訴訟的演進動力,作為行政審判中的“變通”,協(xié)同式行政訴訟萌生于司法實踐之中,順應(yīng)了社會治理模式的發(fā)展,重新詮釋了行政訴訟的價值,為行政訴訟的研究提出了新的命題。
[Abstract]:Starting from the practical logic, this paper tries to examine the legal effect of administrative litigation through empirical analysis and logical argument, analyze the various factors that affect the actual effect of administrative litigation, and further explore the feasible way to improve the legal effect of administrative litigation. The full text is divided into seven parts, including six chapters. The first chapter is The general theory about the actual effect of administrative litigation is mainly from the concept of legal effect, the validity of law and the analysis of these two related concepts, the concept of the legal effect of administrative litigation, the method of investigation and the influencing factors. The legal effect of administrative litigation in China is the actual operation state of administrative litigation in China. Secondly, according to the object of the legal effect of administrative litigation, we can examine and analyze the legal effect of administrative litigation from three angles of psychology, sociology and economics, and these three angles can not be separated completely, but interpenetrate each other to explain the legal effect of administrative litigation. Finally, the legal effect is influenced by the reference. The main factors that influence the actual effect of Chinese administrative litigation are the following four main factors: one is the institutional factor. The main factor is to examine and analyze the relationship between institutional factors and the legislative objectives of administrative litigation. Two is the power structure factor. The main factors are to explore the independent status of China's administrative litigation from the dimension of the state power relations, and examine the independent status of China's administrative litigation. Depth, the breadth and depth of judicial authority. Three is the main factor of behavior. It mainly examines and analyzes the understanding of the parties to the administrative litigation, the motivation and purpose of the application and the vision of the development of the law. Four is the implementation of the environmental factors. The main investigation and analysis of the relationship between the implementation environment of administrative litigation and the form of administrative litigation is the second chapter. Through the interpretation of the purpose of the administrative litigation and the investigation of the judicial practice, the author thinks that the clarity, rationality and operability of the Chinese administrative litigation law affect the judicial practice of the administrative litigation. The provisions of the legislative purpose of the administrative litigation are stipulated. The protection of the legitimate rights and interests of the relative people has been completely covered by the purpose of "completely solving the administrative dispute" in practice, and the legislative purpose of "solving the administrative dispute thoroughly" is not entangled in the thorough solution of the case dispute and is based on the unity of the judicial effect and social effect of the whole society, and is more to the reality. In the specific process of administrative trial, the aim of the judge is complex and pluralistic. The authority and credibility of the administrative trial in China are gradually reduced to chicken ribs in the pursuit of the superposition of various effects. The third chapter is an analysis of the actual effect of the independence of administrative litigation and the analysis of the power factors. Due to the litigation in the power structure, the power factor is the key factor affecting the judicial practice of administrative litigation. The court of China is not only a neutral judicial institution, but also a bureaucracy, the Party committee, the local government and the court have countless ties. The court itself is not only controlled in the system, but also benefited from the system. In the whole state power structure, the results of the administrative trial are closely related to the achievements of the local government. The results of the trial are in accordance with the party's policy and the overall plan of the local government to meet the maximum of the court's own interests while pursuing judicial justice. The fourth chapter is the actual effect of the appeals to the parties of the administrative litigation. This paper mainly discusses the main factors affecting the legal effect of administrative litigation, and tries to examine and analyze the understanding, application, views and suggestions of administrative litigation from the angle of the judges, lawyers, administrative relative and administrative organs. This paper analyzes the operation status of administrative litigation, and pays attention to the true feelings of the subject in administrative litigation, and analyzes the participation logic of all parties in the administrative litigation from four aspects of the choice of the administrative litigation parties, the cognition of the administrative litigation, the legal consciousness and the strategy of the weak in the administrative litigation. The fifth chapter is the line of action. The administrative litigation in China is influenced by the environmental factors. The administrative litigation in China can not give full play to the independence of the judiciary. The solution to the administrative dispute is a flexible solution to the mediation of administrative litigation. China's administrative litigation is deeply embedded in the whirlpool of power structure. It is "unbearable" to fully solve administrative disputes by the administrative referee of "non black or white". The court plays not only the role of the referee, but also the coordinator of all aspects of the interests of the court in administrative proceedings. The court is careful to make suggestions, conciliation, and direction through a series of "variable" methods. The Party committee help to solve the difficult problems in the administrative trial in a variety of ways, in order to maintain the authority of the court and the justice of the judiciary. The sixth chapter is an analysis of the path to improve the legal effect of administrative litigation. To improve and improve the legal effect of administrative litigation from the following five aspects. First, establish the authority of administrative trial. Through the investigation of the basic position of administrative trial and the satisfaction of the "conciliatory withdrawal", the author puts forward that the "administrative judgment" has the incomparable role of other non legal methods. The arbitrariness of administrative litigation and the increase of the proportion of administrative cases judgment and settlement to establish the authority of administrative trial; second, standardize the "reconciliation and withdrawal" in judicial practice. According to the selection, views and suggestions of the parties to the "reconciliation and withdrawal" in the investigation and administrative litigation, the idea of "reconciliation withdrawing the lawsuit" is put forward to improve the operation of the administrative procedure law. Third, promote the social identity of the administrative referee. The process of administrative litigation is a highly professional and technical process. The process and results of administrative litigation are easily misinterpreted and misled by the people. By strengthening the public opinion communication in administrative litigation and the explanation of lawyers' interpretation in the lawsuit, the society of the administrative referee can be effectively promoted. Fourth, respect the phased development of administrative litigation. The evolution of the administrative litigation system in China is a gradual process. This method of revision respects the stages of the development of administrative litigation and adopts a gradual reform. The high nature and unbalance of the different needs of the subject and the asymmetry of the supply and demand of the system can be produced. In order to make some predictions about the future development of the administrative litigation system. Fifth, comply with the development of the social governance model. The positive interaction between the administration, the judiciary and the people is the motive force of the administrative litigation. As the "change" in the administrative trial, the cooperative administrative litigation is born in the judicial practice, complies with the development of the social governance model and reinterprets it. The value of administrative litigation raises a new proposition for the study of administrative litigation.
【學(xué)位授予單位】：西南政法大學(xué)
【學(xué)位級別】：博士
【學(xué)位授予年份】：2016
【分類號】：D925.3
本文編號：2130857
[Abstract]:Starting from the practical logic, this paper tries to examine the legal effect of administrative litigation through empirical analysis and logical argument, analyze the various factors that affect the actual effect of administrative litigation, and further explore the feasible way to improve the legal effect of administrative litigation. The full text is divided into seven parts, including six chapters. The first chapter is The general theory about the actual effect of administrative litigation is mainly from the concept of legal effect, the validity of law and the analysis of these two related concepts, the concept of the legal effect of administrative litigation, the method of investigation and the influencing factors. The legal effect of administrative litigation in China is the actual operation state of administrative litigation in China. Secondly, according to the object of the legal effect of administrative litigation, we can examine and analyze the legal effect of administrative litigation from three angles of psychology, sociology and economics, and these three angles can not be separated completely, but interpenetrate each other to explain the legal effect of administrative litigation. Finally, the legal effect is influenced by the reference. The main factors that influence the actual effect of Chinese administrative litigation are the following four main factors: one is the institutional factor. The main factor is to examine and analyze the relationship between institutional factors and the legislative objectives of administrative litigation. Two is the power structure factor. The main factors are to explore the independent status of China's administrative litigation from the dimension of the state power relations, and examine the independent status of China's administrative litigation. Depth, the breadth and depth of judicial authority. Three is the main factor of behavior. It mainly examines and analyzes the understanding of the parties to the administrative litigation, the motivation and purpose of the application and the vision of the development of the law. Four is the implementation of the environmental factors. The main investigation and analysis of the relationship between the implementation environment of administrative litigation and the form of administrative litigation is the second chapter. Through the interpretation of the purpose of the administrative litigation and the investigation of the judicial practice, the author thinks that the clarity, rationality and operability of the Chinese administrative litigation law affect the judicial practice of the administrative litigation. The provisions of the legislative purpose of the administrative litigation are stipulated. The protection of the legitimate rights and interests of the relative people has been completely covered by the purpose of "completely solving the administrative dispute" in practice, and the legislative purpose of "solving the administrative dispute thoroughly" is not entangled in the thorough solution of the case dispute and is based on the unity of the judicial effect and social effect of the whole society, and is more to the reality. In the specific process of administrative trial, the aim of the judge is complex and pluralistic. The authority and credibility of the administrative trial in China are gradually reduced to chicken ribs in the pursuit of the superposition of various effects. The third chapter is an analysis of the actual effect of the independence of administrative litigation and the analysis of the power factors. Due to the litigation in the power structure, the power factor is the key factor affecting the judicial practice of administrative litigation. The court of China is not only a neutral judicial institution, but also a bureaucracy, the Party committee, the local government and the court have countless ties. The court itself is not only controlled in the system, but also benefited from the system. In the whole state power structure, the results of the administrative trial are closely related to the achievements of the local government. The results of the trial are in accordance with the party's policy and the overall plan of the local government to meet the maximum of the court's own interests while pursuing judicial justice. The fourth chapter is the actual effect of the appeals to the parties of the administrative litigation. This paper mainly discusses the main factors affecting the legal effect of administrative litigation, and tries to examine and analyze the understanding, application, views and suggestions of administrative litigation from the angle of the judges, lawyers, administrative relative and administrative organs. This paper analyzes the operation status of administrative litigation, and pays attention to the true feelings of the subject in administrative litigation, and analyzes the participation logic of all parties in the administrative litigation from four aspects of the choice of the administrative litigation parties, the cognition of the administrative litigation, the legal consciousness and the strategy of the weak in the administrative litigation. The fifth chapter is the line of action. The administrative litigation in China is influenced by the environmental factors. The administrative litigation in China can not give full play to the independence of the judiciary. The solution to the administrative dispute is a flexible solution to the mediation of administrative litigation. China's administrative litigation is deeply embedded in the whirlpool of power structure. It is "unbearable" to fully solve administrative disputes by the administrative referee of "non black or white". The court plays not only the role of the referee, but also the coordinator of all aspects of the interests of the court in administrative proceedings. The court is careful to make suggestions, conciliation, and direction through a series of "variable" methods. The Party committee help to solve the difficult problems in the administrative trial in a variety of ways, in order to maintain the authority of the court and the justice of the judiciary. The sixth chapter is an analysis of the path to improve the legal effect of administrative litigation. To improve and improve the legal effect of administrative litigation from the following five aspects. First, establish the authority of administrative trial. Through the investigation of the basic position of administrative trial and the satisfaction of the "conciliatory withdrawal", the author puts forward that the "administrative judgment" has the incomparable role of other non legal methods. The arbitrariness of administrative litigation and the increase of the proportion of administrative cases judgment and settlement to establish the authority of administrative trial; second, standardize the "reconciliation and withdrawal" in judicial practice. According to the selection, views and suggestions of the parties to the "reconciliation and withdrawal" in the investigation and administrative litigation, the idea of "reconciliation withdrawing the lawsuit" is put forward to improve the operation of the administrative procedure law. Third, promote the social identity of the administrative referee. The process of administrative litigation is a highly professional and technical process. The process and results of administrative litigation are easily misinterpreted and misled by the people. By strengthening the public opinion communication in administrative litigation and the explanation of lawyers' interpretation in the lawsuit, the society of the administrative referee can be effectively promoted. Fourth, respect the phased development of administrative litigation. The evolution of the administrative litigation system in China is a gradual process. This method of revision respects the stages of the development of administrative litigation and adopts a gradual reform. The high nature and unbalance of the different needs of the subject and the asymmetry of the supply and demand of the system can be produced. In order to make some predictions about the future development of the administrative litigation system. Fifth, comply with the development of the social governance model. The positive interaction between the administration, the judiciary and the people is the motive force of the administrative litigation. As the "change" in the administrative trial, the cooperative administrative litigation is born in the judicial practice, complies with the development of the social governance model and reinterprets it. The value of administrative litigation raises a new proposition for the study of administrative litigation.
【學(xué)位授予單位】：西南政法大學(xué)
【學(xué)位級別】：博士
【學(xué)位授予年份】：2016
【分類號】：D925.3
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