我國行政給付訴訟研究
發(fā)布時間：2019-04-02 08:05
【摘要】：行政給付訴訟是指原告依據法定或約定的給付請求權,請求法院判決被告承擔給付義務的訴訟。其訴訟標的既包括金錢或其他物質利益的給付,也包括一定行為的給付。行政給付訴訟具有訴訟種類的多樣性,爭訟對象的廣泛性,訴訟功能的多重性以及訴訟兩造的變動性之四大特征。行政給付訴訟的發(fā)展與完善既有助于敦促政府履行給付義務,增進公民福祉,也有助于豐富我國的行政訴訟類型,促進訴訟類型理論的完善。通過研究,本文發(fā)現,與域外先進的理論和立法實踐相比,我國行政給付訴訟存在著概念未法定化,給付訴訟未類型化,受案范圍過窄以及程序不健全等方面的問題。這些問題一方面反映了我國對行政給付訴訟的理論研究不夠充分,另一方面也折射出我國行政給付訴訟立法的不完善。研究目的是詳細闡述行政給付訴訟的一般理論,并簡單介紹域外給付訴訟的理論成果和立法實踐,在此基礎之上,歸納我國現有法律規(guī)定下的行政給付訴訟類型,并著眼于我國行政給付訴訟制度存在的問題提出完善該項制度的建議。具體的制度完備包括在立法中明確提出行政給付訴訟這一概念,以概括性條款的形式規(guī)定其受案范圍。在對我國現有行政給付訴訟類型歸納的同時增加財產型給付訴訟中的行政契約給付訴訟以及主要針對行政事實行為的非財產給付訴訟。行政給付訴訟的完善除了要對其實體內容全面理解把握外,還需要對行政給付訴訟的運作規(guī)則進行特別的設計。明確起訴條件以及審理規(guī)則,針對行政給付訴訟原告資格的特殊性建議對其做特別的立法設計,明確法院審理此類型行政訴訟的重點是審查原告是否享有給付請求權。還需擴大行政給付訴訟適用調解程序的范圍,增加給付判決形式,從多角度使行政給付訴訟的程序得以健全。研究方法包括案例研究法,通過案例的引入,更好地闡釋相關概念或說明問題;比較研究法,對域外先進的立法實踐和理論研究取得的成果加以借鑒;實證研究法,在我國現有的法律規(guī)定及政策文件中,探尋我國的實際做法,并指出其問題所在。
[Abstract]:Administrative payment action refers to the action that plaintiff requests defendant to assume the obligation of payment according to the legal or agreed right of claim for payment. The object of action includes not only the payment of money or other material interests, but also the payment of certain acts. Administrative payment litigation has four characteristics: the variety of litigation types, the wide range of litigant objects, the multiplicity of litigation functions and the variation of litigation and litigation. The development and perfection of administrative benefit litigation is not only helpful to urge the government to fulfill its obligation of payment, but also helpful to enrich the types of administrative litigation in our country and to perfect the theory of litigation type. Through the research, this paper finds that compared with the advanced theory and legislative practice outside the territory, there are some problems in the administrative payment litigation in our country, such as the concept is not legalized, the payment litigation is not typed, the scope of accepting the case is too narrow, and the procedure is not perfect, and so on. On the one hand, these problems reflect the insufficient theoretical research on administrative payment litigation in our country, on the other hand, it also reflects the imperfection of the administrative payment litigation legislation in our country. The purpose of the study is to elaborate on the general theory of administrative payment litigation, and to introduce briefly the theoretical achievements and legislative practice of extraterritorial payment litigation. On this basis, the types of administrative payment litigation under the existing laws in China are summarized. At the same time, the author puts forward some suggestions to improve the system of administrative payment litigation system in view of the problems existing in the system of administrative payment litigation. The specific system is complete, including clearly put forward the concept of administrative payment litigation in the legislation, and define the scope of accepting cases in the form of general clauses. At the same time, the administrative contract litigation and the non-property payment litigation, which are mainly aimed at the administrative factual acts, are added to the existing administrative payment litigation in our country as well as the administrative contract litigation in the property-type payment litigation as well as the non-property payment litigation. The perfection of administrative payment litigation should not only fully understand its substantive content, but also make a special design of the operation rules of administrative payment litigation. In view of the particularity of plaintiff's qualification in administrative payment litigation, it is suggested that special legislative design should be made for the prosecution conditions and trial rules. It is clear that the focus of the court hearing this type of administrative litigation is to examine whether plaintiff enjoys the right of claim for payment. It is also necessary to expand the scope of the mediation procedure applied to the administrative payment litigation, to add the form of the award judgment, and to make the administrative payment procedure perfect from many angles. The research methods include case study method, through the introduction of cases, better explanation of related concepts or problems, comparative research method, the advanced extraterritorial legislative practice and theoretical research to learn from the results; Empirical study, in the existing legal provisions and policy documents, explores the practical practice of our country, and points out where its problems lie.
【學位授予單位】：遼寧大學
【學位級別】：碩士
【學位授予年份】：2015
【分類號】：D925.3
本文編號：2452398
[Abstract]:Administrative payment action refers to the action that plaintiff requests defendant to assume the obligation of payment according to the legal or agreed right of claim for payment. The object of action includes not only the payment of money or other material interests, but also the payment of certain acts. Administrative payment litigation has four characteristics: the variety of litigation types, the wide range of litigant objects, the multiplicity of litigation functions and the variation of litigation and litigation. The development and perfection of administrative benefit litigation is not only helpful to urge the government to fulfill its obligation of payment, but also helpful to enrich the types of administrative litigation in our country and to perfect the theory of litigation type. Through the research, this paper finds that compared with the advanced theory and legislative practice outside the territory, there are some problems in the administrative payment litigation in our country, such as the concept is not legalized, the payment litigation is not typed, the scope of accepting the case is too narrow, and the procedure is not perfect, and so on. On the one hand, these problems reflect the insufficient theoretical research on administrative payment litigation in our country, on the other hand, it also reflects the imperfection of the administrative payment litigation legislation in our country. The purpose of the study is to elaborate on the general theory of administrative payment litigation, and to introduce briefly the theoretical achievements and legislative practice of extraterritorial payment litigation. On this basis, the types of administrative payment litigation under the existing laws in China are summarized. At the same time, the author puts forward some suggestions to improve the system of administrative payment litigation system in view of the problems existing in the system of administrative payment litigation. The specific system is complete, including clearly put forward the concept of administrative payment litigation in the legislation, and define the scope of accepting cases in the form of general clauses. At the same time, the administrative contract litigation and the non-property payment litigation, which are mainly aimed at the administrative factual acts, are added to the existing administrative payment litigation in our country as well as the administrative contract litigation in the property-type payment litigation as well as the non-property payment litigation. The perfection of administrative payment litigation should not only fully understand its substantive content, but also make a special design of the operation rules of administrative payment litigation. In view of the particularity of plaintiff's qualification in administrative payment litigation, it is suggested that special legislative design should be made for the prosecution conditions and trial rules. It is clear that the focus of the court hearing this type of administrative litigation is to examine whether plaintiff enjoys the right of claim for payment. It is also necessary to expand the scope of the mediation procedure applied to the administrative payment litigation, to add the form of the award judgment, and to make the administrative payment procedure perfect from many angles. The research methods include case study method, through the introduction of cases, better explanation of related concepts or problems, comparative research method, the advanced extraterritorial legislative practice and theoretical research to learn from the results; Empirical study, in the existing legal provisions and policy documents, explores the practical practice of our country, and points out where its problems lie.
【學位授予單位】：遼寧大學
【學位級別】：碩士
【學位授予年份】：2015
【分類號】：D925.3
【參考文獻】
相關期刊論文 前6條
1 章志遠;;行政訴訟類型化模式比較與選擇[J];比較法研究;2006年05期
2 章志遠;;給付行政與行政訴訟法的新發(fā)展——以行政給付訴訟為例[J];法商研究;2008年04期
3 熊勇先;;公法不當得利及其救濟[J];法學雜志;2012年06期
4 章志遠;朱秋蓉;;預防性不作為訴訟研究[J];學習論壇;2009年08期
5 吳華;;論課予義務訴訟——對行政不作為的救濟形式[J];行政法學研究;2006年01期
6 喻少如;;論行政給付行為的訴訟救濟[J];中國社會科學院研究生院學報;2010年06期
，本文編號：2452398
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