論瑕疵行政行為的效力問題
發(fā)布時間：2018-08-25 19:33
【摘要】：在實(shí)踐中,由于社會的復(fù)雜,行政關(guān)系的復(fù)雜,這樣那樣的不規(guī)范的行政行為大量存在。除了傳統(tǒng)意義上的行政違法和行政不當(dāng)外就沒有第三種可能嗎?答案是否定的,瑕疵行政行為就是第三種可能。德國將瑕疵行政行為分為不正確的法律后果、不合目的的行政行為、一般違法的行政行為、比較嚴(yán)重的瑕疵和特別嚴(yán)重的瑕疵瑕疵行政行為五類。日本將違法的行政行為和不當(dāng)?shù)男姓袨?都認(rèn)為是瑕疵的行政行為。我國學(xué)界也沒有一個統(tǒng)一的標(biāo)準(zhǔn)。無論是德國、日本,還是我國學(xué)者現(xiàn)在的一些觀點(diǎn)都存在這樣或那樣的缺陷。瑕疵行政行為應(yīng)屬于一般性的違法行為,這種違法行為主要表現(xiàn)在程序或形式上存在瑕疵,該瑕疵并不一定無效或撤銷,對于輕微的瑕疵可以通過補(bǔ)救的方式使該行為得以生效；對于重大明顯的瑕疵,已經(jīng)損害了行政相對人合法權(quán)益的,予以撤銷或確認(rèn)無效。瑕疵行政行為屬于輕微的違法行為,其瑕疵主要表現(xiàn)在形式上或次要程序上的,這些瑕疵不足實(shí)質(zhì)影響到行政行為的性質(zhì),因此瑕疵行政行為具有公定力,這樣確保了法律關(guān)系的穩(wěn)定。在有權(quán)機(jī)關(guān)做出權(quán)威判斷之前,應(yīng)該推定瑕疵行政行為有效。鑒于行政行為的效力有形式效力與實(shí)質(zhì)效力之分,瑕疵行政行為的效力也可分成形式效力與實(shí)質(zhì)效力。形式效力一種是嚴(yán)重且明顯瑕疵將影響行政行為效力,另一種是不影響行政行為形式效力的瑕疵。嚴(yán)重且明顯瑕疵行政行為是無效行政行為,事后經(jīng)權(quán)威性判斷可以確認(rèn)行政行為無效。對于輕微瑕疵行政行為來說,補(bǔ)正制度可謂最優(yōu)選擇,但是,補(bǔ)正應(yīng)有時間限制,應(yīng)在行政訴訟開庭審理之前。行政行為的實(shí)質(zhì)效力是在行政行為符合法的實(shí)質(zhì)正當(dāng)性原則的條件下所具有的法律效力。違背合法有效要件的瑕疵行政行為法律后果有兩種表現(xiàn)：撤銷瑕疵行政行為或者確認(rèn)行政行為違法。其他瑕疵行政行為的實(shí)質(zhì)效力應(yīng)根據(jù)瑕疵的不同性質(zhì)及程度,可對其采取補(bǔ)正、變更、更正的補(bǔ)救措施。我國現(xiàn)行的法律法規(guī)對瑕疵行政行為采取了更加嚴(yán)格的規(guī)定,只要行政行為存在瑕疵其結(jié)果要么撤銷要么確認(rèn)無效,并不得采取補(bǔ)正的救濟(jì)途徑存續(xù)其效力,尤其對于違背法律規(guī)定的程序性事項(xiàng)的瑕疵,這樣的做法存在很大弊端,應(yīng)借鑒國外好的經(jīng)驗(yàn)和做法,如德國和臺灣地區(qū)對瑕疵行政行為采取補(bǔ)正和轉(zhuǎn)換的方式、日本采取治愈和轉(zhuǎn)換的方式,逐步完善我國在認(rèn)定瑕疵行政行為效力的法律法規(guī)。首先,在認(rèn)定瑕疵行政行為效力時應(yīng)遵守符合實(shí)際原則、合法性原則、比例原則、保障司法解決原則。在審查時,謹(jǐn)慎使用撤銷,少用、慎用確認(rèn)違法,依照正當(dāng)程序的原則進(jìn)行審查,對于輕微瑕疵應(yīng)加以補(bǔ)正等方式。
[Abstract]:In practice, due to the complexity of society and administrative relations, such non-standard administrative behavior exists in large quantities. In addition to the traditional sense of the illegal administration and improper administration, there is no third possibility? The answer is no, defective administrative behavior is the third possibility. Germany divides defective administrative acts into five categories: incorrect legal consequences, suboptimal administrative acts, general illegal administrative acts, more serious defects and especially serious defective administrative acts. In Japan, illegal and improper administrative acts are regarded as defective administrative acts. Our country academic circle also does not have a unified standard. Whether it is Germany, Japan, or our scholars now have some ideas have one or another defects. A defective administrative act should be a general illegal act, which is mainly manifested in the defect of procedure or form, which is not necessarily invalid or revoked. Minor defects can be remedied to make the act effective; for significant and obvious defects that have damaged the legitimate rights and interests of the administrative counterpart shall be revoked or confirmed invalid. Defective administrative act is a minor illegal act, and its defects are mainly in form or secondary procedure. These defects affect the nature of administrative act in essence, so defective administrative act has a public power. This ensures the stability of legal relations. The defective administrative act should be presumed to be valid before the authority makes the authoritative judgment. In view of the fact that the validity of administrative act is divided into formal effect and substantive effect, the validity of defective administrative act can also be divided into formal effect and substantive effect. One is that serious and obvious defects will affect the effectiveness of administrative acts, the other is the defects that do not affect the formal effects of administrative acts. Serious and obviously defective administrative act is an invalid administrative act, which can be confirmed by authoritative judgment afterwards. For minor defective administrative acts, the system of correction is the best choice, but the correction should be limited in time, and should be heard before the administrative proceedings. The substantive effect of administrative act is the legal effect under the condition that administrative act conforms to the principle of substantive legitimacy of law. There are two kinds of legal consequences of defective administrative act that violate the legal and effective requirements: revocation of defective administrative act or confirmation of illegal administrative act. The substantial effect of other defective administrative acts should be corrected, modified and corrected according to the different nature and degree of defects. The current laws and regulations of our country have adopted more strict regulations on defective administrative act, so long as the result of administrative act is defective, its result is either revoked or confirmed to be invalid, and the remedy way of complement and correction is not allowed to survive its effect. Especially with regard to the defects of procedural matters in violation of the provisions of the law, such practices have great disadvantages. We should learn from good experience and practices from abroad, such as Germany and Taiwan adopting a way of correcting and transforming defective administrative acts. Japan adopts the method of cure and transformation, and gradually consummates the laws and regulations of our country in determining the validity of defective administrative act. First of all, we should abide by the principles of reality, legality, proportionality and judicial settlement in determining the effectiveness of defective administrative acts. In the examination, the methods of withdrawing, using less and using carefully to confirm the violation of law, to review according to the principle of due process, and to correct minor defects should be used carefully.
【學(xué)位授予單位】：湖南師范大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2014
【分類號】：D922.11
本文編號：2203885
[Abstract]:In practice, due to the complexity of society and administrative relations, such non-standard administrative behavior exists in large quantities. In addition to the traditional sense of the illegal administration and improper administration, there is no third possibility? The answer is no, defective administrative behavior is the third possibility. Germany divides defective administrative acts into five categories: incorrect legal consequences, suboptimal administrative acts, general illegal administrative acts, more serious defects and especially serious defective administrative acts. In Japan, illegal and improper administrative acts are regarded as defective administrative acts. Our country academic circle also does not have a unified standard. Whether it is Germany, Japan, or our scholars now have some ideas have one or another defects. A defective administrative act should be a general illegal act, which is mainly manifested in the defect of procedure or form, which is not necessarily invalid or revoked. Minor defects can be remedied to make the act effective; for significant and obvious defects that have damaged the legitimate rights and interests of the administrative counterpart shall be revoked or confirmed invalid. Defective administrative act is a minor illegal act, and its defects are mainly in form or secondary procedure. These defects affect the nature of administrative act in essence, so defective administrative act has a public power. This ensures the stability of legal relations. The defective administrative act should be presumed to be valid before the authority makes the authoritative judgment. In view of the fact that the validity of administrative act is divided into formal effect and substantive effect, the validity of defective administrative act can also be divided into formal effect and substantive effect. One is that serious and obvious defects will affect the effectiveness of administrative acts, the other is the defects that do not affect the formal effects of administrative acts. Serious and obviously defective administrative act is an invalid administrative act, which can be confirmed by authoritative judgment afterwards. For minor defective administrative acts, the system of correction is the best choice, but the correction should be limited in time, and should be heard before the administrative proceedings. The substantive effect of administrative act is the legal effect under the condition that administrative act conforms to the principle of substantive legitimacy of law. There are two kinds of legal consequences of defective administrative act that violate the legal and effective requirements: revocation of defective administrative act or confirmation of illegal administrative act. The substantial effect of other defective administrative acts should be corrected, modified and corrected according to the different nature and degree of defects. The current laws and regulations of our country have adopted more strict regulations on defective administrative act, so long as the result of administrative act is defective, its result is either revoked or confirmed to be invalid, and the remedy way of complement and correction is not allowed to survive its effect. Especially with regard to the defects of procedural matters in violation of the provisions of the law, such practices have great disadvantages. We should learn from good experience and practices from abroad, such as Germany and Taiwan adopting a way of correcting and transforming defective administrative acts. Japan adopts the method of cure and transformation, and gradually consummates the laws and regulations of our country in determining the validity of defective administrative act. First of all, we should abide by the principles of reality, legality, proportionality and judicial settlement in determining the effectiveness of defective administrative acts. In the examination, the methods of withdrawing, using less and using carefully to confirm the violation of law, to review according to the principle of due process, and to correct minor defects should be used carefully.
【學(xué)位授予單位】：湖南師范大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2014
【分類號】：D922.11
【參考文獻(xiàn)】
相關(guān)期刊論文 前10條
1 朱秘穎;;淺析行政違法引起的行政行為效力問題[J];重慶科技學(xué)院學(xué)報(社會科學(xué)版);2011年23期
2 江必新;;法律行為效力制度的重構(gòu)[J];法學(xué);2013年04期
3 劉秀麗;;行政程序違法的司法審查[J];東南司法評論;2011年00期
4 章禾舟;;論合法行政行為之撤銷——以行政訴訟為研究視角[J];法律適用;2014年02期
5 關(guān)保英;;不當(dāng)具體行政行為的不當(dāng)性分析[J];華東政法大學(xué)學(xué)報;2009年03期
6 張弘;郭勝鰲;;行政瑕疵行為辨析與補(bǔ)救[J];遼寧大學(xué)學(xué)報(哲學(xué)社會科學(xué)版);2007年02期
7 于冠雄;;論行政程序瑕疵的司法審查——以我國立法、司法和學(xué)理的矛盾與協(xié)調(diào)為視角[J];江蘇廣播電視大學(xué)學(xué)報;2012年04期
8 張世民;;淺談行政程序違法案件的審判理念和思路[J];江西科技師范大學(xué)學(xué)報;2012年06期
9 黃全;;法治國視野下行政行為對司法機(jī)關(guān)的效力[J];河北法學(xué);2014年03期
10 王艷艷;;質(zhì)疑“程序輕微瑕疵不影響相對人合法權(quán)益”[J];山西省政法管理干部學(xué)院學(xué)報;2012年03期
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