行政诉讼中“明显不当”研究

发布时间：2018-03-05 04:22

本文选题：明显不当　切入点：合法性　出处：《辽宁大学》2017年硕士论文　论文类型：学位论文

【摘要】：在全面推进依法治国的背景下,准确定位明显不当行政行为,并加强规范与制约,是坚持依法治国、依法执政、依法行政共同推进的具体要求。新修订的《中华人民共和国行政诉讼法》(以下简称《行政诉讼法》)将明显不当行政行为列入了司法审查范围。本文共分三个部分对明显不当行政行为进行了研究和探讨:第一部分为“明显不当”的含义与性质辨析。关于“明显不当”的含义,要从《行政诉讼法》第70条规定的整体上把握,明显不当意味着行政行为不仅不能违反法律、法规等的明文规定,还不能与一般人所应具有的常理、常识、常情以及行政法中人们认可的各种规则、原则、行政惯例、立法目的与立法精神等相悖。关于“明显不当”的性质,学界有两种观点,一种认为“明显不当”属于合理性的范畴,实为不合理的行政行为,一种观点认为“明显不当”属于合法性的范畴。笔者持第二种观点。合理性与合法性之间没有不可逾越的鸿沟,不当行政行为属于违反了合理性,当这种违反程度超越了合理性的边界,就成为违反合法性的问题,成为违法行政行为。第二部分为“明显不当”适用范围及判断标准。在排除了“明显不当”在事实问题、法律适用问题、程序问题中的适用余地后,得出“明显不当”适用于对行政行为实体内容的审查。判断是否构成“明显不当”应从行政行为是否违反平等原则、比例原则、正当程序原则以及行政惯例和公共政策的角度进行考量。第三部分是关于针对明显不当行政行为裁判方式的选择问题。现行《行政诉讼法》规定了法院对明显不当的行政行为可以作出撤销判决或撤销重作判决,对明显不当的行政处罚可以判决变更。无论是撤销判决还是变更判决,都有其存在的合理性和必要性,又存在有待完善之处。
[Abstract]:Under the background of comprehensively promoting governing the country according to law, it is necessary to accurately position obvious improper administrative acts and strengthen norms and restrictions, which is to persist in governing the country according to law and ruling by law. The newly revised Administrative Litigation Law of the people's Republic of China (hereinafter referred to as the Administrative Litigation Law) has included obvious improper administrative acts in the scope of judicial review. This article is divided into three parts. This paper studies and discusses the obvious improper administrative behavior: the first part is the analysis of the meaning and nature of "obviously improper", and the meaning of "obviously improper". To grasp from the overall point of view the provisions of Article 70 of the "Administrative Litigation Law", obviously improper means that administrative acts should not only not violate the express provisions of the laws, regulations, etc., but also cannot have the common sense and common sense that ordinary people should have. The commonsense and the rules, principles, administrative practices, legislative purposes and the spirit of legislation which are recognized by people in administrative law are contrary to each other. There are two views on the nature of "obviously improper". An administrative act that considers "manifestly inappropriate" to be reasonable and unreasonable. The author holds the second view that there is no insurmountable gap between rationality and legitimacy, and that improper administrative conduct is a violation of rationality. When the degree of such violation exceeds the boundary of rationality, it becomes the issue of violation of legality and illegal administrative act. The second part is the scope of application and judgment standard of "manifestly improper". After the application of the law and the scope of application in the procedure, it is concluded that "manifestly improper" is applicable to the examination of the content of the entity of the administrative act. The judgment of whether the administrative act constitutes "manifestly improper" should be based on whether the administrative act violates the principle of equality and the principle of proportionality. The principle of due process and the perspective of administrative practice and public policy are taken into consideration. The third part deals with the choice of adjudication methods for manifestly improper administrative conduct. When the administrative act may be annulled or rescinded, The administrative punishment which is obviously improper can be changed by judgment. Whether the decision is revoked or the judgment is changed, there is the rationality and necessity of its existence, and there are still some things to be perfected.
【学位授予单位】：辽宁大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D925.3

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