论给付判决的适用范围——以《行政诉讼法》第73条为分析对象

发布时间：2018-09-12 15:34

【摘要】：《行政诉讼法》第73条新设了给付判决这一判决类型,厘清给付判决的适用范围是对给付判决进一步研究和适用的必要前提。关于立法者新增给付判决条款的动因,主要有专门解决"行政给付"案件与等同于比较法上"一般给付判决"两种不同的观点,这两种观点在论证过程中均存在缺陷,但共同指出了给付判决是作为履行判决补丁存在的。通过对《行政诉讼法》实施一年半来法院适用给付判决的173份裁判文书的分析,可知法院在最宽泛意义上适用给付判决,使得履行判决与给付判决适用出现混同趋势。基于给付判决与履行判决概念之间的关联性以及给付判决所处行政诉讼判决体系中的定位,得出给付判决适用于原告要求行政机关履行法定给付义务、基于行政协议的给付义务之外
[Abstract]:Article 73 of Administrative procedure Law sets up the judgment type of payment judgment, and it is necessary to clarify the scope of application of the judgment. There are two kinds of different viewpoints about legislator's new judgment clause of compensation, that is, solving the case of "administrative payment" specially and equating with "general judgment of payment" in comparative law, both of which have defects in the process of argumentation. However, it is pointed out that the award of payment exists as a patch for the performance of the judgment. Through the analysis of 173 documents that the court has applied to the judgment of payment in the past one and a half years, it can be seen that the court applies the judgment of payment in the broadest sense, which makes the application of performance judgment and the judgment of payment mixed. Based on the relationship between the judgment of compensation and the concept of performance of judgment and the orientation of the judgment system of administrative litigation, the conclusion is drawn that the judgment of payment is applicable to the plaintiff who requires the administrative organ to perform the obligation of statutory payment. Beyond the obligation to pay based on the Administrative Agreement
【作者单位】：浙江工业大学法学院;浙江工业大学福利与法治研究中心;
【分类号】：D925.3

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