檢察機關提起行政公益訴訟實證研究
發(fā)布時間：2018-07-26 18:52
【摘要】：自人類社會進入20世紀之后,由于市場自身調(diào)節(jié)機制的失靈,現(xiàn)代社會中的行政權功能開始出現(xiàn)嬗變,并隨之引發(fā)了行政權的擴張。包括我國在內(nèi)的世界各國,均面臨著因行政權過度擴張而引發(fā)的權力尋租、權錢交易、人浮于事、效率低下等現(xiàn)象。近年來,伴隨著我國社會經(jīng)濟的不斷發(fā)展,在GDP行政考核體制下,因政府不作為與亂作為而引發(fā)的國家利益與社會公益遭受侵犯的現(xiàn)象不斷增多。由此,面對國家利益與社會公益所遭受的侵害與侵害危險性,如何通過法律手段對其提供保護與救濟,探索行之有效的訴訟救濟模式,逐漸成為了社會各界關注的焦點所在。在此背景下,我國將行政公益訴訟納入到了依法治國范疇之中,并推動行政公益訴訟進入了司法實踐階段。全國人大常委會以法律授權的方式,賦予了檢察機關提起公益訴訟的法定職權。但對于我國探索構建適合于我國國情與客觀需要的行政公益訴訟制度而言,長期以來法學界出現(xiàn)了較大爭議。相關爭議主要圍繞行政公益訴訟的概念、制度定位、法理基礎、必要性、實效性、可行性等問題展開。時至今日,行政公益訴訟試點工作已經(jīng)臨近結束。結合試點工作過程當中所取得的相關司法實踐經(jīng)驗,總結期間所出現(xiàn)的問題與工作不足,推動行政公益訴訟立法與司法體系的完善,在全國范圍內(nèi)賦予檢察機關發(fā)動這一訴訟法定職權與主體資格已迫在眉睫。有鑒于此,本文圍繞法學界關于行政公益訴訟制度構建所產(chǎn)生的相關理論爭議,結合相關理論學說與域外相關領域立法,對以檢察機關作為發(fā)動主體的行政公益訴訟進行了實證研究,以期能夠助力于我國在相關領域立法與司法實踐工作開展。本文主要分為四部分進行研究:第一章為對相關概念以及基本內(nèi)涵的闡述與介紹,主要從行政公益訴訟的概念與特征、法理基礎等兩方面對其內(nèi)涵進行了介紹。第二章為對我國以檢察機關作為發(fā)動主體的行政公益訴訟的司法實踐及制度探索情況的介紹,并選取了白山市人民檢察院訴江源區(qū)衛(wèi)生和計劃生育局與江源區(qū)中醫(yī)院這一行政附帶民事公益訴訟為典型案例。第三章為對當前我國以檢察機關作為發(fā)動主體的、涉及行政公益訴訟的相關理論爭議以及相關問題的闡述與梳理,主要論述了制度構建的可行性、必要性、緊迫性與效能性。同時對于行政公益訴訟范疇下,以檢察機關作為唯一發(fā)動主體的合理性、其在行政公益訴訟之中的法律地位等幾方面問題。第四章為結合相關案例與當前行政公益訴訟立法與司法實踐情況,對完善以檢察機關作為發(fā)動主體的行政公益訴訟相關制度的建議與制度構建設想。首先,本章論述了檢察機關提起行政公益訴訟應當遵循司法克制主義,避免造成司法權對行政權的過渡干涉,影響行政權的正當運行。其次,本章提出,完善行政公益訴訟制度,必須完善行政公益訴訟制度的立法體系,具體而言,主要是通過修訂行政訴訟法與檢察院組織法來完成。再次,本章論述了針對檢察機關提起行政公益訴訟制度所要面臨的巨大司法實踐挑戰(zhàn),并在此基礎之上提出了需對當前檢察機關進行機構改革,通過成立檢察院分院與建立專業(yè)化檢察隊伍的方式,進一步強化檢察資源配置。
[Abstract]:Since the entry of human society into the twentieth Century, because of the failure of the regulation mechanism of the market itself, the administrative function of the modern society has begun to change, and it has caused the expansion of administrative power. All the countries, including our country, are faced with the power rent-seeking, the power and money trading, the excess of power and money, the inefficiency and the low efficiency. In recent years, with the continuous development of our country's social economy, under the administrative examination system of GDP, the phenomenon of national interests and social public welfare, which is caused by the government's inaction and disorderly conduct, is constantly increasing. Thus, how to deal with the danger of infringement and infringement on the national interests and social public welfare through legal means To provide protection and relief and to explore effective litigation relief mode, it has gradually become the focus of attention from all walks of life. Under this background, China has incorporated administrative public interest litigation into the category of governing the country according to law, and promoted the administrative public interest litigation into the judicial practice stage. The legal authority of public interest litigation is given to the procuratorial organs. However, for a long time, there have been great disputes in the legal field for the exploration and construction of the administrative public interest litigation system suitable for the national conditions and objective needs of our country. The related disputes mainly focus on the concept of administrative public interest litigation, system orientation, legal basis, necessity, effectiveness and feasibility. At the present time, the pilot work of administrative public interest litigation is close to the end. With the relevant judicial experience gained in the process of the pilot work, the problems and the lack of work have been summed up, and the legislative and judicial system of the administrative public interest litigation will be promoted and the procuratorial organs are given this action throughout the country. In view of this, this article, based on the relevant theoretical disputes arising from the construction of the administrative public interest litigation system in the legal circles, combines the relevant theories and the relevant fields of the relevant fields of legislation, and carries out an empirical study on the administrative public interest litigation taking the procuratorial organs as the main body of public interest, with a view to helping to help them. China has carried out legislation and judicial practice in related fields. This article is divided into four parts: the first chapter is the introduction and introduction of related concepts and basic connotations, mainly from the concept and characteristics of the administrative public interest litigation, the legal basis and other two aspects of its connotation. The second chapter is to our country to the procuratorial organs as Introduce the judicial practice and system exploration of the administrative public interest litigation of the main body, and select the typical case of the administrative incidental civil public interest litigation of the Baishan City people's Procuratorate, Jiangyuan district health and Family Planning Bureau and the Jiangyuan District traditional Chinese medicine hospital. The third chapter is about the current China taking the procuratorial organs as the main body. The relevant theoretical disputes and related problems of public interest litigation are expounded and combed, and the feasibility, necessity, urgency and effectiveness of the system construction are mainly discussed. At the same time, the rationality of the procuratorial organs as the only main body in the category of public interest litigation and the legal status of the administrative public interest litigation in the administrative public interest litigation are asked. The fourth chapter is to combine the relevant cases and the current administrative public interest litigation legislation and judicial practice, to improve the proposal and system construction of the administrative public interest litigation system which takes the procuratorial organs as the main body. First, this chapter expounds that the procuratorial organs should follow the judicial restraint to bring the administrative public interest litigation to avoid the cause of the Department. The transitional interference between legal right and administrative power affects the proper operation of administrative power. Secondly, this chapter proposes that the system of administrative public interest litigation should be perfected, and the legislative system of the administrative public interest litigation system must be perfected. In particular, it is mainly accomplished through the revision of the administrative procedure law and the organization law of the procuratorate. On the basis of the great judicial practice challenges faced by the public interest litigation system, it is proposed that the reform of the current procuratorial organs should be carried out. By establishing a procuratorate branch and establishing a professional procuratorial team, the procuratorial resources should be further strengthened.
【學位授予單位】：鄭州大學
【學位級別】：碩士
【學位授予年份】：2017
【分類號】：D925.3
本文編號：2146967
[Abstract]:Since the entry of human society into the twentieth Century, because of the failure of the regulation mechanism of the market itself, the administrative function of the modern society has begun to change, and it has caused the expansion of administrative power. All the countries, including our country, are faced with the power rent-seeking, the power and money trading, the excess of power and money, the inefficiency and the low efficiency. In recent years, with the continuous development of our country's social economy, under the administrative examination system of GDP, the phenomenon of national interests and social public welfare, which is caused by the government's inaction and disorderly conduct, is constantly increasing. Thus, how to deal with the danger of infringement and infringement on the national interests and social public welfare through legal means To provide protection and relief and to explore effective litigation relief mode, it has gradually become the focus of attention from all walks of life. Under this background, China has incorporated administrative public interest litigation into the category of governing the country according to law, and promoted the administrative public interest litigation into the judicial practice stage. The legal authority of public interest litigation is given to the procuratorial organs. However, for a long time, there have been great disputes in the legal field for the exploration and construction of the administrative public interest litigation system suitable for the national conditions and objective needs of our country. The related disputes mainly focus on the concept of administrative public interest litigation, system orientation, legal basis, necessity, effectiveness and feasibility. At the present time, the pilot work of administrative public interest litigation is close to the end. With the relevant judicial experience gained in the process of the pilot work, the problems and the lack of work have been summed up, and the legislative and judicial system of the administrative public interest litigation will be promoted and the procuratorial organs are given this action throughout the country. In view of this, this article, based on the relevant theoretical disputes arising from the construction of the administrative public interest litigation system in the legal circles, combines the relevant theories and the relevant fields of the relevant fields of legislation, and carries out an empirical study on the administrative public interest litigation taking the procuratorial organs as the main body of public interest, with a view to helping to help them. China has carried out legislation and judicial practice in related fields. This article is divided into four parts: the first chapter is the introduction and introduction of related concepts and basic connotations, mainly from the concept and characteristics of the administrative public interest litigation, the legal basis and other two aspects of its connotation. The second chapter is to our country to the procuratorial organs as Introduce the judicial practice and system exploration of the administrative public interest litigation of the main body, and select the typical case of the administrative incidental civil public interest litigation of the Baishan City people's Procuratorate, Jiangyuan district health and Family Planning Bureau and the Jiangyuan District traditional Chinese medicine hospital. The third chapter is about the current China taking the procuratorial organs as the main body. The relevant theoretical disputes and related problems of public interest litigation are expounded and combed, and the feasibility, necessity, urgency and effectiveness of the system construction are mainly discussed. At the same time, the rationality of the procuratorial organs as the only main body in the category of public interest litigation and the legal status of the administrative public interest litigation in the administrative public interest litigation are asked. The fourth chapter is to combine the relevant cases and the current administrative public interest litigation legislation and judicial practice, to improve the proposal and system construction of the administrative public interest litigation system which takes the procuratorial organs as the main body. First, this chapter expounds that the procuratorial organs should follow the judicial restraint to bring the administrative public interest litigation to avoid the cause of the Department. The transitional interference between legal right and administrative power affects the proper operation of administrative power. Secondly, this chapter proposes that the system of administrative public interest litigation should be perfected, and the legislative system of the administrative public interest litigation system must be perfected. In particular, it is mainly accomplished through the revision of the administrative procedure law and the organization law of the procuratorate. On the basis of the great judicial practice challenges faced by the public interest litigation system, it is proposed that the reform of the current procuratorial organs should be carried out. By establishing a procuratorate branch and establishing a professional procuratorial team, the procuratorial resources should be further strengthened.
【學位授予單位】：鄭州大學
【學位級別】：碩士
【學位授予年份】：2017
【分類號】：D925.3
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