我国行政相对人程序抵抗权之困境与出路研究
发布时间：2018-08-25 07:59
【摘要】：随着行政权力的行使范围不断扩大，在现代社会行政法领域形成了行政权威，以便于行政事务高效快速了结，但另一方面行政权力的强化容易产生恣意侵犯公民合法权益的情形，易导致行政权力异化的倾向。此时，，作为行政相对人的一方，如果凭借普通人认识水平就可判断某一行为具有明显重大瑕疵，相对人即可以采取合理方式予以抵抗。行政相对人程抵抗权的存在意义重大。本文拟从以下几个方面对其进行探讨： 第一部分“行政相对人程序抵抗权概述”。对于抵抗权这一恒久话题的讨论一开始并非起源于行政法领域，因此该部分首先以行政权的历史流变为背景，介绍了不同维度下的抵抗权，从而更加全面的认识我们要讨论的行政法视角下的抵抗权，在把握其准确概念和特征的基础上，再讨论相对人程序抵抗权的正当性依据。 第二部分“我国行政相对人程序抵抗权的实践考察”。在这部分中，考察我国行政抵抗权的实际情况，主要分成两部分，我国的立法实践和司法实践。以现有的立法为切入点，通过对无效行政行为、相对人抵抗权相关立法的现状分析，进而引发对相对人程序抵抗权所涉及立法建设的相关思考，为下文中讨论我国行政相对人程序抵抗权面临的困境问题奠定基础；紧接着以我国目前行政司法实践中的相对人行使抵抗权案例为切入，主要探讨在法律适用过程中行政相对人抵抗权行使的实际状况，从而更加全面认知我国的行政司法实践。 第三部分“我国行政相对人行使抵抗权面临的困境”。经过上面两个部分的讨论，最为直接的就是引出我国关于行政相对人程序抵抗权问题的困境探讨。笔者将我国行政相对人行使抵抗权的困境分为理论困境和实践困境，由无效行政行为引出，有理论到实践的“无效行政行为理论概念的界定”、“无效行政行为诉讼制度的缺位”、“相对人抵抗权与行政强制执行力之间存在矛盾”多重困境等，希望能深刻揭示我国的行政相对人抵抗权的困境。 第四部分“行政相对人程序抵抗权的保障与完善”。在以上讨论的基础上针对存在的问题提出建设性的建议和对策。首先从法律上明确规定行政无效行为的概念和认定标准，保证有法可依。接着从完善制度层面入手进行制度构建，建立无效确认之诉；改革执行制度，尤其是对“争诉不停止执行”的完善；建设行政相对人抵抗权行使的责任制度。
[Abstract]:With the continuous expansion of the scope of administrative power, administrative authority has been formed in the field of modern social administrative law, in order to facilitate the efficient and rapid conclusion of administrative affairs. On the other hand, the strengthening of administrative power is apt to infringe upon the legitimate rights and interests of citizens and lead to the alienation of administrative power. At this time, as one party of the administrative counterpart, if the ordinary people can judge that a certain behavior has a significant flaw, the relative person can take a reasonable way to resist it. The existence of the right of administrative counterpart resistance is of great significance. This paper discusses it from the following aspects: the first part is the outline of the procedural resistance right of the administrative counterpart. The discussion on the permanent topic of resistance does not originate in the field of administrative law at first. Therefore, this part firstly introduces the right of resistance in different dimensions with the background of the historical evolution of administrative power. So we can fully understand the right of resistance under the perspective of administrative law, on the basis of grasping its accurate concept and characteristics, and then discuss the legitimate basis of the right of relative party's procedural resistance. The second part is the practice investigation of procedural resistance right of administrative counterpart in our country. In this part, the author investigates the actual situation of the right of administrative resistance in our country, mainly divided into two parts, the legislative practice and judicial practice of our country. Taking the existing legislation as the starting point, through the analysis of the current situation of the legislation related to the invalid administrative act and the relative person's right of resistance, it leads to the related thinking on the legislative construction of the relative party's right of procedural resistance. It lays a foundation for the discussion of the dilemma of the procedural resistance right of the administrative counterpart in our country. Then, the case of the relative person exercising the right of resistance in the current administrative judicial practice of our country is taken as the starting point. This paper mainly discusses the actual situation of the exercise of the right of resistance of the administrative counterpart in the process of applying the law, so as to understand more comprehensively the administrative judicial practice in our country. The third part is the dilemma that our administrative counterpart faces in exercising the right of resistance. Through the above two parts of the discussion, the most direct is to lead to the administrative counterpart of the procedural resistance of the dilemma. The author divides the dilemma of our country's administrative counterpart to exercise the right of resistance into the theoretical dilemma and the practical dilemma, which is derived from the invalid administrative act, and includes the definition of the theory concept of the invalid administrative act from theory to practice. "the absence of the litigation system of invalid administrative act", "the contradiction between the relative party's right of resistance and the administrative enforcement force", and so on, hope to reveal the dilemma of our country's administrative counterpart's right of resistance deeply. The fourth part is the protection and perfection of the procedural resistance right of the administrative counterpart. Based on the above discussion, constructive suggestions and countermeasures are put forward for the existing problems. Firstly, the concept and standard of administrative invalidation are clearly defined in law to ensure that there are laws to be followed. Then it starts with the system construction from the perfect system level, establishes the action of invalid confirmation; reforms the execution system, especially the perfection of "not to stop the execution of the lawsuit"; and builds the responsibility system of the exercise of the administrative counterpart's right of resistance.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.3
本文编号：2202265
[Abstract]:With the continuous expansion of the scope of administrative power, administrative authority has been formed in the field of modern social administrative law, in order to facilitate the efficient and rapid conclusion of administrative affairs. On the other hand, the strengthening of administrative power is apt to infringe upon the legitimate rights and interests of citizens and lead to the alienation of administrative power. At this time, as one party of the administrative counterpart, if the ordinary people can judge that a certain behavior has a significant flaw, the relative person can take a reasonable way to resist it. The existence of the right of administrative counterpart resistance is of great significance. This paper discusses it from the following aspects: the first part is the outline of the procedural resistance right of the administrative counterpart. The discussion on the permanent topic of resistance does not originate in the field of administrative law at first. Therefore, this part firstly introduces the right of resistance in different dimensions with the background of the historical evolution of administrative power. So we can fully understand the right of resistance under the perspective of administrative law, on the basis of grasping its accurate concept and characteristics, and then discuss the legitimate basis of the right of relative party's procedural resistance. The second part is the practice investigation of procedural resistance right of administrative counterpart in our country. In this part, the author investigates the actual situation of the right of administrative resistance in our country, mainly divided into two parts, the legislative practice and judicial practice of our country. Taking the existing legislation as the starting point, through the analysis of the current situation of the legislation related to the invalid administrative act and the relative person's right of resistance, it leads to the related thinking on the legislative construction of the relative party's right of procedural resistance. It lays a foundation for the discussion of the dilemma of the procedural resistance right of the administrative counterpart in our country. Then, the case of the relative person exercising the right of resistance in the current administrative judicial practice of our country is taken as the starting point. This paper mainly discusses the actual situation of the exercise of the right of resistance of the administrative counterpart in the process of applying the law, so as to understand more comprehensively the administrative judicial practice in our country. The third part is the dilemma that our administrative counterpart faces in exercising the right of resistance. Through the above two parts of the discussion, the most direct is to lead to the administrative counterpart of the procedural resistance of the dilemma. The author divides the dilemma of our country's administrative counterpart to exercise the right of resistance into the theoretical dilemma and the practical dilemma, which is derived from the invalid administrative act, and includes the definition of the theory concept of the invalid administrative act from theory to practice. "the absence of the litigation system of invalid administrative act", "the contradiction between the relative party's right of resistance and the administrative enforcement force", and so on, hope to reveal the dilemma of our country's administrative counterpart's right of resistance deeply. The fourth part is the protection and perfection of the procedural resistance right of the administrative counterpart. Based on the above discussion, constructive suggestions and countermeasures are put forward for the existing problems. Firstly, the concept and standard of administrative invalidation are clearly defined in law to ensure that there are laws to be followed. Then it starts with the system construction from the perfect system level, establishes the action of invalid confirmation; reforms the execution system, especially the perfection of "not to stop the execution of the lawsuit"; and builds the responsibility system of the exercise of the administrative counterpart's right of resistance.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.3
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