行政诉讼规范性文件审查研究

发布时间：2018-03-30 22:18

本文选题：规范性文件　切入点：附带性审查　出处：《辽宁大学》2016年硕士论文

【摘要】：2015随着新《行政诉讼法》的华丽登场,规范性文件可附带审查制度终于揭开面纱,正式以法律形式现身在司法审查的视野当中。虽然仅仅只是撕开一个小小的口子,但这却是有着历史意义的一大进步。之前许多类似“限牌、限购”等限制公民权利的规范性文件常常游离于司法监督之外,虽然我们法院对规范性文件有时也会审查,但是却是在缺乏法律明确授权之下进行的。而如今这一利好消息使得法院审查“名正言顺”。从此以后行政机关制定的“红头文件”被剥离一层保护壳,与之相反我们的权利却增添了一层保护膜。然则行政诉讼规范性文件可附带性审查制度首次出现,并不是完美无缺的。在行政诉讼实践中还有诸多疑难困惑,无论是理解方面还是实际实践中都需要进一步解释与探讨。因此这些问题需要亟待解决,否则不利其的有效运作。因此在行政诉讼规范性文件附带审查制度方面,本文通过对现行法律法规的分析,评价其优劣性,在肯定其积极的一面时,也要看到其空白与缺陷。针对行政诉讼规范性文件附带审查制度之粗框架,还未更具体化,导致实务操作上的一些疑难困惑,笔者提出自己的一些拙见。首先对于管辖法院的确定,诉讼启动对象加以分析评价等。其次说明就附带性审查标准而言,不能一味认定为只以合法性为准完全不考虑合理性。审查内容包括权限审查、效力审查、合法性审查、必要的程序审查,以及审查的后续处理,如何裁判、如何司法建议、审查结果共享等。最后提出附带性审查的限制性与缺陷性。虽然附带性审查一定程度弥补了对抽象行为的司法审查空白,但是它只有在具体行政行为对行政相对人造成损害时才可向法院附带提出对规范性文件的审查,也容易出现引起复议与诉讼之矛盾排斥,有一定的限制性。建议在未来的立法中,我国的行政诉讼规范性文件审查的审查方式还要继续发展与完善,不要仅仅拘泥于附带性审查,而要完善更加合理的审查制度。笔者认为单纯的附带审查还是远远不够的,应与直接审查相互弥补照应,共存于行政诉讼之中.因为规范性文件的不利影响不是说特定相对人因此受害才产生,而是事实上其甫一发布就具有约束力,公民之行为模式就就受到限制即已产生直接权益减损。而且二审终审制限制了权利救济,且实践中再审启动困难。如果规范性文件能够可以被直接起诉监督审理,必然能使权利救济道路更加通畅无阻,促进社会和谐。同时积极推进《规范性文件法》的制定以适应社会发展的需求,追本溯源,清理规范性文件混乱之源头,以促进我国法治政府、法治社会的法治进程。
[Abstract]:2015 with the magnificent appearance of the new Administrative procedure Law, the system of appended examination of normative documents was finally unveiled and formally appeared in the field of judicial review in the form of law.Although it was only a small opening, it was a great progress of historical significance.In the past, many normative documents, such as "limited license, limited purchase" and so on, often drifted away from judicial supervision. Although our courts sometimes examine normative documents, they are carried out under the lack of explicit authorization of the law.And now the good news has led the court to examine the "right case."Since then, the "red-headed document" made by the administration has been stripped off a protective shell, but our rights have been added a protective film.However, the system of appended examination of normative documents in administrative litigation is not perfect for the first time.There are still many puzzles in the practice of administrative litigation, both in terms of understanding and practical practice, need to be further explained and discussed.Therefore, these problems need to be solved urgently, otherwise it is unfavorable to their effective operation.Therefore, in the administrative litigation normative documents collateral review system, through the analysis of the current laws and regulations, the evaluation of its merits and demerits, while affirming its positive side, but also to see its gaps and defects.In view of the rough framework of the system of appended examination of the normative documents of administrative litigation, which has not been more specific, which leads to some difficulties and puzzles in practical operation, the author puts forward some clumsy ideas of his own.First of all, the jurisdiction of the court to determine, the object of litigation to be analyzed and evaluated.Secondly, it shows that, in terms of incidental examination standards, we should not blindly regard legitimacy as the criterion and not consider rationality.The contents of the review include competence review, effectiveness review, legality review, necessary procedural review, and the follow-up to the review, how to decide, how to make judicial recommendations, and how to share the results of the review, etc.Finally, the limitation and defect of incidental examination are put forward.Although the incidental examination has made up the gap of judicial review of abstract act to some extent, it can only bring forward the review of normative documents to the court when the specific administrative act causes harm to the administrative counterpart.It is also easy to cause the contradiction between reconsideration and litigation, which is limited to a certain extent.It is suggested that in the future legislation, the way of examining the normative documents of administrative litigation should continue to develop and improve, not just the incidental review, but also the more reasonable review system.The author thinks that the simple incidental review is far from enough, and should make up for each other with the direct review and coexist in the administrative litigation.Because the adverse effect of normative documents is not to say that a particular relative person is injured, but in fact, it is binding as soon as it is issued, and the behavior mode of citizens is restricted, that is, the direct derogation of rights and interests has already occurred.Moreover, the second instance system limits the right relief, and retrial is difficult in practice.If normative documents can be directly prosecuted and tried, it will surely make the right relief road more unobstructed and promote social harmony.At the same time, we should actively promote the formulation of the normative documents Law in order to meet the needs of social development, trace back to the source, and clean up the source of the confusion of normative documents, so as to promote the rule of law government and the process of the rule of law in the society ruled by law in our country.
【学位授予单位】：辽宁大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D925.3

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