行政協(xié)議的強(qiáng)制執(zhí)行路徑及其改造
發(fā)布時(shí)間：2018-12-11 03:44
【摘要】：相對于具體行政行為,行政協(xié)議因具協(xié)商性而更易被相對人接受,也日益受到行政機(jī)關(guān)的重視。但是,行政協(xié)議的非強(qiáng)制性使得行政機(jī)關(guān)陷入困境:相對人不履行約定義務(wù)的情形下,如何實(shí)現(xiàn)行政協(xié)議的強(qiáng)制執(zhí)行?新行政訴訟法將行政協(xié)議糾紛納入受案范圍,此舉明確了行政機(jī)關(guān)不履行協(xié)議時(shí)相對人的救濟(jì)路徑,卻未注意到行政協(xié)議的雙向性,不僅沒有解決前述現(xiàn)實(shí)困境,反而有加重之趨勢。通過對刊登在北大法寶上的38個(gè)涉及行政協(xié)議強(qiáng)制執(zhí)行司法審查案例的梳理,可以歸納出實(shí)踐中所采取的四種不同的強(qiáng)制執(zhí)行路徑,并且在新行政訴訟法實(shí)施前后,司法實(shí)踐中行政協(xié)議的強(qiáng)制執(zhí)行路徑都未統(tǒng)一。行政協(xié)議性質(zhì)、行政協(xié)議與行政行為關(guān)系是行政協(xié)議強(qiáng)制執(zhí)行路徑選擇的關(guān)鍵。行政協(xié)議兼具行政性和契約性,同時(shí)通過規(guī)范分析和學(xué)理分析得出新行政訴訟法中"行政協(xié)議"被視為行政行為和私法行為的合成、"行政行為"仍是狹義上的行政行為。在此基礎(chǔ)上,實(shí)踐中的四種路徑都存在一定的缺陷�，F(xiàn)階段,在協(xié)議中引入自愿接受強(qiáng)制執(zhí)行作為格式條款較為適宜。在沒有阻斷相對人救濟(jì)途徑的前提下,既為行政機(jī)關(guān)申請法院強(qiáng)制執(zhí)行提供權(quán)利依據(jù),又兼顧行政協(xié)議的行政性和契約性。同時(shí)通過完善非訴強(qiáng)制執(zhí)行制度設(shè)計(jì),在平衡公益與相對方利益的同時(shí),也保障執(zhí)行目的的有效達(dá)成。引入自愿接受強(qiáng)制執(zhí)行能夠適應(yīng)行政協(xié)議類型的多元化,同時(shí),隨著市場機(jī)制的日益完善,行政協(xié)議當(dāng)事人間的承諾會日益受到尊重,這種以協(xié)議約定來解決糾紛的方式也適應(yīng)了這一趨勢。
[Abstract]:Compared with specific administrative acts, administrative agreement is more easily accepted by relative parties because of its consultative nature, and is increasingly attached importance to by administrative organs. However, the non-mandatory administrative agreement makes the administrative organs into a dilemma: how to achieve the enforcement of the administrative agreement when the relative party does not perform the contractual obligations? The new law of administrative procedure brings the dispute of administrative agreement into the scope of accepting the case, which clarifies the relief path of the relative party when the administrative organ fails to perform the agreement, but does not pay attention to the bidirectional nature of the administrative agreement, and not only does it not solve the above-mentioned practical dilemma, On the contrary, there is a tendency of aggravation. By combing 38 cases of judicial review involving the enforcement of administrative agreements published in Peking University's magic treasures, we can conclude four different ways of enforcement in practice, and before and after the implementation of the new Administrative procedure Law. In judicial practice, the enforcement path of administrative agreement is not uniform. The nature of administrative agreement, the relationship between administrative agreement and administrative act is the key to the choice of administrative agreement enforcement path. The administrative agreement is both administrative and contractual. At the same time, through normative analysis and theoretical analysis, it is concluded that "administrative agreement" in the new administrative procedure law is regarded as the combination of administrative act and private law act, and "administrative act" is still a narrow administrative act. On this basis, there are some defects in the four paths in practice. At present, it is more appropriate to introduce voluntary acceptance as a form clause in the agreement. On the premise of not blocking the remedy way of relative party, it not only provides the right basis for administrative organ to apply for court enforcement, but also gives consideration to the administrative and contractual nature of administrative agreement. At the same time, by perfecting the design of non-litigation enforcement system, we can balance the public interest and the relative interests, and also ensure the effective achievement of the purpose of execution. The introduction of voluntary acceptance can adapt to the diversification of the types of administrative agreements. At the same time, as the market mechanism becomes more and more perfect, the commitments between the parties to the administrative agreements will be increasingly respected. This way of settling disputes by agreement also adapts to this trend.
【學(xué)位授予單位】：浙江大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2017
【分類號】：D925.3
本文編號：2371803
[Abstract]:Compared with specific administrative acts, administrative agreement is more easily accepted by relative parties because of its consultative nature, and is increasingly attached importance to by administrative organs. However, the non-mandatory administrative agreement makes the administrative organs into a dilemma: how to achieve the enforcement of the administrative agreement when the relative party does not perform the contractual obligations? The new law of administrative procedure brings the dispute of administrative agreement into the scope of accepting the case, which clarifies the relief path of the relative party when the administrative organ fails to perform the agreement, but does not pay attention to the bidirectional nature of the administrative agreement, and not only does it not solve the above-mentioned practical dilemma, On the contrary, there is a tendency of aggravation. By combing 38 cases of judicial review involving the enforcement of administrative agreements published in Peking University's magic treasures, we can conclude four different ways of enforcement in practice, and before and after the implementation of the new Administrative procedure Law. In judicial practice, the enforcement path of administrative agreement is not uniform. The nature of administrative agreement, the relationship between administrative agreement and administrative act is the key to the choice of administrative agreement enforcement path. The administrative agreement is both administrative and contractual. At the same time, through normative analysis and theoretical analysis, it is concluded that "administrative agreement" in the new administrative procedure law is regarded as the combination of administrative act and private law act, and "administrative act" is still a narrow administrative act. On this basis, there are some defects in the four paths in practice. At present, it is more appropriate to introduce voluntary acceptance as a form clause in the agreement. On the premise of not blocking the remedy way of relative party, it not only provides the right basis for administrative organ to apply for court enforcement, but also gives consideration to the administrative and contractual nature of administrative agreement. At the same time, by perfecting the design of non-litigation enforcement system, we can balance the public interest and the relative interests, and also ensure the effective achievement of the purpose of execution. The introduction of voluntary acceptance can adapt to the diversification of the types of administrative agreements. At the same time, as the market mechanism becomes more and more perfect, the commitments between the parties to the administrative agreements will be increasingly respected. This way of settling disputes by agreement also adapts to this trend.
【學(xué)位授予單位】：浙江大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2017
【分類號】：D925.3
【參考文獻(xiàn)】
相關(guān)期刊論文 前2條
1 官強(qiáng);;淺析“責(zé)令限期拆除”的法律屬性[J];中國土地;2012年10期
2 于立深;;通過實(shí)務(wù)發(fā)現(xiàn)和發(fā)展行政合同制度[J];當(dāng)代法學(xué);2008年06期
，本文編號：2371803
本文鏈接：http://sikaile.net/falvlunwen/susongfa/2371803.html
最近更新
教材專著
