行政首長(zhǎng)出庭應(yīng)訴制度的理性認(rèn)識(shí)
發(fā)布時(shí)間：2018-09-04 12:09
【摘要】：以《中華人民共和國(guó)行政訴訟法》的頒布實(shí)施為標(biāo)志,我國(guó)具有中國(guó)特色的行政訴訟制度建立至今已近25年。這項(xiàng)“民告官”的法律制度的實(shí)施和行政審判工作的開展,對(duì)于推進(jìn)依法治國(guó),促進(jìn)依法行政,保護(hù)公民權(quán)利,化解行政爭(zhēng)議,服務(wù)國(guó)家大局、維護(hù)社會(huì)穩(wěn)定,都具有不可替代的重要地位和作用。行政訴訟是行政救濟(jì)的一種,也是最具有鮮明民主特質(zhì)的法律制度之一,在規(guī)范行政機(jī)關(guān)行為、維護(hù)行政相對(duì)人權(quán)益方面發(fā)揮不可替代的作用。行政首長(zhǎng)出庭應(yīng)訴是指行政相對(duì)人依法向人民法院提起行政訴訟,被訴行政機(jī)關(guān)的負(fù)責(zé)人作為被告親自參加庭審、應(yīng)訴辯護(hù)的一項(xiàng)訴訟制度。該制度的實(shí)施使行政首長(zhǎng)在庭審過(guò)程中對(duì)行政主體所做具體行政行為合法與否形成直觀了解,同時(shí)也扭轉(zhuǎn)了被告缺席判決對(duì)維護(hù)行政審判權(quán)威的不利影響。實(shí)踐證明,行政首長(zhǎng)出庭應(yīng)訴制度確實(shí)在一定程度上改善行政訴訟審理難、裁判難、執(zhí)行難問(wèn)題,行政首長(zhǎng)出庭應(yīng)訴制度作為中國(guó)特色法治建設(shè)的制度探索,不失為推動(dòng)行政審判邁近公平正義的一條良方。我國(guó)行政首長(zhǎng)出庭應(yīng)訴制度的發(fā)展和實(shí)踐,大致經(jīng)歷了兩個(gè)階段。自1990年10月1日起《行政訴訟法》施行,到2004年國(guó)務(wù)院頒布《全面推進(jìn)依法行政實(shí)施綱要》及最高人民法院出臺(tái)《關(guān)于加強(qiáng)和改進(jìn)行政審判工作的意見》前為第一階段。該階段行政首長(zhǎng)出庭應(yīng)訴制度屬個(gè)別地方“民間創(chuàng)舉”,發(fā)展相對(duì)緩慢。2004年至今為第二階段,國(guó)務(wù)院與最高人民法院關(guān)于行政首長(zhǎng)出庭應(yīng)訴制度的指導(dǎo)性規(guī)定出臺(tái),標(biāo)志著行政首長(zhǎng)出庭應(yīng)訴這一“民間創(chuàng)舉”一躍上升為國(guó)家支持鼓勵(lì)的一項(xiàng)制度。時(shí)至今日,行政首長(zhǎng)出庭應(yīng)訴已經(jīng)成為法院、政府所共同力推的重要改革舉措之一。縱觀世界各國(guó)的行政訴訟制度,以法定形式要求行政負(fù)責(zé)人出庭應(yīng)訴的極為少見。我國(guó)行政首長(zhǎng)出庭應(yīng)訴制度并非復(fù)制國(guó)外先進(jìn)訴訟制度的“舶來(lái)品”,而恰恰是極具中國(guó)特色、“土生土長(zhǎng)”的新制度,確是帶有鮮明中國(guó)特色與時(shí)代特征的產(chǎn)物,值得深入研究與探討。目前,在我國(guó)法學(xué)界的研究中,對(duì)于行政首長(zhǎng)出庭應(yīng)訴制度的定位存在不同認(rèn)識(shí),一種觀點(diǎn)認(rèn)為它是社會(huì)主義法治國(guó)家建設(shè)進(jìn)程中階段性解決行政訴訟困境的權(quán)宜之計(jì)。另一種觀點(diǎn)倡導(dǎo)將行政首長(zhǎng)出庭應(yīng)訴作為一種固定制度長(zhǎng)期存在,并實(shí)現(xiàn)法定化。本文以我國(guó)行政首長(zhǎng)出庭應(yīng)訴制度的產(chǎn)生發(fā)展為基礎(chǔ),通過(guò)對(duì)其演進(jìn)過(guò)程和相關(guān)規(guī)范性文件研究,對(duì)這項(xiàng)制度的合理定位、發(fā)展前景、需要解決的突出問(wèn)題進(jìn)行初步的討論;在此基礎(chǔ)上,對(duì)這項(xiàng)制度的最終定位及完善,提出了自己的解決建議。
[Abstract]:Marked by the promulgation and implementation of the Administrative Litigation Law of the people's Republic of China, the administrative litigation system with Chinese characteristics has been established in China for nearly 25 years. The implementation of this legal system of "people suing officials" and the development of administrative trials will promote the rule of law, promote administration according to law, protect citizens' rights, resolve administrative disputes, serve the overall situation of the country, and safeguard social stability. All have irreplaceable important position and function. Administrative litigation is a kind of administrative relief and one of the most distinctive democratic legal systems. It plays an irreplaceable role in standardizing the behavior of administrative organs and safeguarding the rights and interests of administrative counterparts. The administrative head appearing in court is a lawsuit system in which the administrative counterpart brings an administrative lawsuit to the people's court according to law and the person in charge of the accused administrative organ attends the trial personally as the defendant. The implementation of this system makes the executive head know directly whether the specific administrative act done by the administrative subject is legal or not in the course of the trial, and also reverses the adverse effect of the defendant's default judgment on the maintenance of the authority of the administrative trial. Practice has proved that the system of administrative head appearing in court does improve to some extent the problems of difficult hearing, difficult adjudication and difficult execution of administrative litigation, and the system of administrative head appearing in court as the system of building the rule of law with Chinese characteristics. It is a good way to push the administrative trial closer to fairness and justice. There are two stages in the development and practice of the system of chief administrative officers appearing in court in our country. Since October 1, 1990, the Administrative Litigation Law has been in force, until the State Council promulgated the outline for the All-round Promotion of Administration according to Law in 2004 and the Supreme people's Court issued "opinions on strengthening and improving Administrative trial work" as the first stage. At this stage, the system of chief executives appearing in court is a "folk initiative" in individual places, and the development is relatively slow. Since 2004, the second stage has been the second stage. The guidance provisions of the State Council and the Supreme people's Court on the system of appearing in court for administrative heads have been issued. It marks the emergence of the chief executive in court as a system of state support and encouragement. Up to now, the chief executive has become one of the important reform measures of the court and the government. Throughout the world's administrative litigation system, it is rare to require the chief executive to appear in court in legal form. The system of chief administrative officers appearing in court in our country is not a copy of the foreign advanced litigation system, but a new system with Chinese characteristics. The new system of "native-born" is indeed the product of distinctive Chinese characteristics and the characteristics of the times. It is worthy of further study and discussion. At present, in the research of law circles in our country, there are different views on the orientation of the system of administrative chief appearing in court, one view is that it is an expedient measure to resolve the dilemma of administrative litigation in the process of building a socialist country ruled by law. Another point of view advocates that the chief executive appear in court as a fixed system for a long time, and achieve legalization. On the basis of the emergence and development of the system of chief executives appearing in court in our country, through the study of its evolution process and related normative documents, this paper makes a preliminary discussion on the reasonable orientation, development prospects and outstanding problems that need to be solved. On this basis, the final positioning and improvement of this system, put forward their own solutions.
【學(xué)位授予單位】：中國(guó)青年政治學(xué)院
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2014
【分類號(hào)】：D925.3
本文編號(hào)：2222063
[Abstract]:Marked by the promulgation and implementation of the Administrative Litigation Law of the people's Republic of China, the administrative litigation system with Chinese characteristics has been established in China for nearly 25 years. The implementation of this legal system of "people suing officials" and the development of administrative trials will promote the rule of law, promote administration according to law, protect citizens' rights, resolve administrative disputes, serve the overall situation of the country, and safeguard social stability. All have irreplaceable important position and function. Administrative litigation is a kind of administrative relief and one of the most distinctive democratic legal systems. It plays an irreplaceable role in standardizing the behavior of administrative organs and safeguarding the rights and interests of administrative counterparts. The administrative head appearing in court is a lawsuit system in which the administrative counterpart brings an administrative lawsuit to the people's court according to law and the person in charge of the accused administrative organ attends the trial personally as the defendant. The implementation of this system makes the executive head know directly whether the specific administrative act done by the administrative subject is legal or not in the course of the trial, and also reverses the adverse effect of the defendant's default judgment on the maintenance of the authority of the administrative trial. Practice has proved that the system of administrative head appearing in court does improve to some extent the problems of difficult hearing, difficult adjudication and difficult execution of administrative litigation, and the system of administrative head appearing in court as the system of building the rule of law with Chinese characteristics. It is a good way to push the administrative trial closer to fairness and justice. There are two stages in the development and practice of the system of chief administrative officers appearing in court in our country. Since October 1, 1990, the Administrative Litigation Law has been in force, until the State Council promulgated the outline for the All-round Promotion of Administration according to Law in 2004 and the Supreme people's Court issued "opinions on strengthening and improving Administrative trial work" as the first stage. At this stage, the system of chief executives appearing in court is a "folk initiative" in individual places, and the development is relatively slow. Since 2004, the second stage has been the second stage. The guidance provisions of the State Council and the Supreme people's Court on the system of appearing in court for administrative heads have been issued. It marks the emergence of the chief executive in court as a system of state support and encouragement. Up to now, the chief executive has become one of the important reform measures of the court and the government. Throughout the world's administrative litigation system, it is rare to require the chief executive to appear in court in legal form. The system of chief administrative officers appearing in court in our country is not a copy of the foreign advanced litigation system, but a new system with Chinese characteristics. The new system of "native-born" is indeed the product of distinctive Chinese characteristics and the characteristics of the times. It is worthy of further study and discussion. At present, in the research of law circles in our country, there are different views on the orientation of the system of administrative chief appearing in court, one view is that it is an expedient measure to resolve the dilemma of administrative litigation in the process of building a socialist country ruled by law. Another point of view advocates that the chief executive appear in court as a fixed system for a long time, and achieve legalization. On the basis of the emergence and development of the system of chief executives appearing in court in our country, through the study of its evolution process and related normative documents, this paper makes a preliminary discussion on the reasonable orientation, development prospects and outstanding problems that need to be solved. On this basis, the final positioning and improvement of this system, put forward their own solutions.
【學(xué)位授予單位】：中國(guó)青年政治學(xué)院
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2014
【分類號(hào)】：D925.3
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相關(guān)期刊論文 前3條
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2 章志遠(yuǎn);顧勤芳;;行政首長(zhǎng)出庭應(yīng)訴立法面向問(wèn)題研究[J];學(xué)習(xí)論壇;2012年10期
3 劉炎迅;李強(qiáng);;單曉鳴:“做被告,我感覺(jué)沒(méi)有損失什么”[J];中國(guó)新聞周刊;2012年48期
，本文編號(hào)：2222063
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