检察机关提起行政公益诉讼实证研究

发布时间：2018-07-26 18:52

【摘要】：自人类社会进入20世纪之后,由于市场自身调节机制的失灵,现代社会中的行政权功能开始出现嬗变,并随之引发了行政权的扩张。包括我国在内的世界各国,均面临着因行政权过度扩张而引发的权力寻租、权钱交易、人浮于事、效率低下等现象。近年来,伴随着我国社会经济的不断发展,在GDP行政考核体制下,因政府不作为与乱作为而引发的国家利益与社会公益遭受侵犯的现象不断增多。由此,面对国家利益与社会公益所遭受的侵害与侵害危险性,如何通过法律手段对其提供保护与救济,探索行之有效的诉讼救济模式,逐渐成为了社会各界关注的焦点所在。在此背景下,我国将行政公益诉讼纳入到了依法治国范畴之中,并推动行政公益诉讼进入了司法实践阶段。全国人大常委会以法律授权的方式,赋予了检察机关提起公益诉讼的法定职权。但对于我国探索构建适合于我国国情与客观需要的行政公益诉讼制度而言,长期以来法学界出现了较大争议。相关争议主要围绕行政公益诉讼的概念、制度定位、法理基础、必要性、实效性、可行性等问题展开。时至今日,行政公益诉讼试点工作已经临近结束。结合试点工作过程当中所取得的相关司法实践经验,总结期间所出现的问题与工作不足,推动行政公益诉讼立法与司法体系的完善,在全国范围内赋予检察机关发动这一诉讼法定职权与主体资格已迫在眉睫。有鉴于此,本文围绕法学界关于行政公益诉讼制度构建所产生的相关理论争议,结合相关理论学说与域外相关领域立法,对以检察机关作为发动主体的行政公益诉讼进行了实证研究,以期能够助力于我国在相关领域立法与司法实践工作开展。本文主要分为四部分进行研究:第一章为对相关概念以及基本内涵的阐述与介绍,主要从行政公益诉讼的概念与特征、法理基础等两方面对其内涵进行了介绍。第二章为对我国以检察机关作为发动主体的行政公益诉讼的司法实践及制度探索情况的介绍,并选取了白山市人民检察院诉江源区卫生和计划生育局与江源区中医院这一行政附带民事公益诉讼为典型案例。第三章为对当前我国以检察机关作为发动主体的、涉及行政公益诉讼的相关理论争议以及相关问题的阐述与梳理,主要论述了制度构建的可行性、必要性、紧迫性与效能性。同时对于行政公益诉讼范畴下,以检察机关作为唯一发动主体的合理性、其在行政公益诉讼之中的法律地位等几方面问题。第四章为结合相关案例与当前行政公益诉讼立法与司法实践情况,对完善以检察机关作为发动主体的行政公益诉讼相关制度的建议与制度构建设想。首先,本章论述了检察机关提起行政公益诉讼应当遵循司法克制主义,避免造成司法权对行政权的过渡干涉,影响行政权的正当运行。其次,本章提出,完善行政公益诉讼制度,必须完善行政公益诉讼制度的立法体系,具体而言,主要是通过修订行政诉讼法与检察院组织法来完成。再次,本章论述了针对检察机关提起行政公益诉讼制度所要面临的巨大司法实践挑战,并在此基础之上提出了需对当前检察机关进行机构改革,通过成立检察院分院与建立专业化检察队伍的方式,进一步强化检察资源配置。
[Abstract]:Since the entry of human society into the twentieth Century, because of the failure of the regulation mechanism of the market itself, the administrative function of the modern society has begun to change, and it has caused the expansion of administrative power. All the countries, including our country, are faced with the power rent-seeking, the power and money trading, the excess of power and money, the inefficiency and the low efficiency. In recent years, with the continuous development of our country's social economy, under the administrative examination system of GDP, the phenomenon of national interests and social public welfare, which is caused by the government's inaction and disorderly conduct, is constantly increasing. Thus, how to deal with the danger of infringement and infringement on the national interests and social public welfare through legal means To provide protection and relief and to explore effective litigation relief mode, it has gradually become the focus of attention from all walks of life. Under this background, China has incorporated administrative public interest litigation into the category of governing the country according to law, and promoted the administrative public interest litigation into the judicial practice stage. The legal authority of public interest litigation is given to the procuratorial organs. However, for a long time, there have been great disputes in the legal field for the exploration and construction of the administrative public interest litigation system suitable for the national conditions and objective needs of our country. The related disputes mainly focus on the concept of administrative public interest litigation, system orientation, legal basis, necessity, effectiveness and feasibility. At the present time, the pilot work of administrative public interest litigation is close to the end. With the relevant judicial experience gained in the process of the pilot work, the problems and the lack of work have been summed up, and the legislative and judicial system of the administrative public interest litigation will be promoted and the procuratorial organs are given this action throughout the country. In view of this, this article, based on the relevant theoretical disputes arising from the construction of the administrative public interest litigation system in the legal circles, combines the relevant theories and the relevant fields of the relevant fields of legislation, and carries out an empirical study on the administrative public interest litigation taking the procuratorial organs as the main body of public interest, with a view to helping to help them. China has carried out legislation and judicial practice in related fields. This article is divided into four parts: the first chapter is the introduction and introduction of related concepts and basic connotations, mainly from the concept and characteristics of the administrative public interest litigation, the legal basis and other two aspects of its connotation. The second chapter is to our country to the procuratorial organs as Introduce the judicial practice and system exploration of the administrative public interest litigation of the main body, and select the typical case of the administrative incidental civil public interest litigation of the Baishan City people's Procuratorate, Jiangyuan district health and Family Planning Bureau and the Jiangyuan District traditional Chinese medicine hospital. The third chapter is about the current China taking the procuratorial organs as the main body. The relevant theoretical disputes and related problems of public interest litigation are expounded and combed, and the feasibility, necessity, urgency and effectiveness of the system construction are mainly discussed. At the same time, the rationality of the procuratorial organs as the only main body in the category of public interest litigation and the legal status of the administrative public interest litigation in the administrative public interest litigation are asked. The fourth chapter is to combine the relevant cases and the current administrative public interest litigation legislation and judicial practice, to improve the proposal and system construction of the administrative public interest litigation system which takes the procuratorial organs as the main body. First, this chapter expounds that the procuratorial organs should follow the judicial restraint to bring the administrative public interest litigation to avoid the cause of the Department. The transitional interference between legal right and administrative power affects the proper operation of administrative power. Secondly, this chapter proposes that the system of administrative public interest litigation should be perfected, and the legislative system of the administrative public interest litigation system must be perfected. In particular, it is mainly accomplished through the revision of the administrative procedure law and the organization law of the procuratorate. On the basis of the great judicial practice challenges faced by the public interest litigation system, it is proposed that the reform of the current procuratorial organs should be carried out. By establishing a procuratorate branch and establishing a professional procuratorial team, the procuratorial resources should be further strengthened.
【学位授予单位】：郑州大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D925.3

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