行政诉权本质之辨:学术史梳理、观念重构与逻辑证成
发布时间：2018-11-04 12:05
【摘要】：作为行政诉权论的重要一环,行政诉权之本质既与诉讼目的息息相关,又对诉权内容及诉权要件产生直接影响。学理上,行政诉权之本质未能达成共识。各学说因诉讼目的论基础或研究视阈上的差异,仍缺乏统一评判标准。以法院的审查方式作为统一评判标准,可起到为各学说搭建共同对话平台的效果。根据法院在判断行政诉权要件时需以何种审查方式完成为标准,可将各诉权学说分别归入实质条件诉权说与形式条件诉权说两大阵营。因实质条件诉权说存在诉权认定结论与现实情况脱节、陷入未审先判的思维误区等缺陷,而形式条件诉权说则可确保诉权认定结论与现实情况相一致、切实化解"立案难"、强化客观法秩序维持之行政诉讼功能模式,故后者更可取。目前,形式条件诉权说阵营中的抽象诉权说、司法行为请求权说、宪法诉权说仍有不足,作为司法行为请求权说之修正版的"诉权层次论"应予提倡。
[Abstract]:As an important part of the theory of administrative right of action, the essence of administrative right of action is closely related to the purpose of litigation, and has a direct influence on the content and elements of right of action. Theoretically, the nature of the administrative right of action has not reached a consensus. Due to the differences in the basis of the teleology of litigation or the research horizon, there is still a lack of unified judgment criteria. Taking the examination of the court as the unified criterion, it can set up the common dialogue platform for each theory. According to the standard that the court needs to complete the examination method when judging the elements of the administrative right of action, each theory of the right of action can be classified into two camps, namely, the theory of substantive conditional right of action and the theory of formal conditional right of action. Due to the fact that the conclusion of the right of action is out of touch with the actual situation, the theory of the right of action has some defects, such as the misunderstanding of the untried judgment, and so on. However, the theory of the formal condition of the right of action can ensure that the conclusion of the right of action is consistent with the actual situation, and effectively resolve the difficulty of filing the case. Strengthen the objective legal order maintenance of the administrative litigation function model, so the latter is preferable. At present, the theory of abstract right of action, the theory of claim of judicial act and the theory of constitutional right of action are still deficient in the camp of formal condition right of action. As a revised version of the theory of claim right of judicial act, the theory of hierarchy of right of action should be advocated.
【作者单位】： 武汉大学法学院;
【基金】：国家社科基金一般项目“我国行政诉讼立案登记制良性运行研究”(项目编号:16BFX048)的阶段性研究成果
【分类号】：D925.3
，
本文编号：2309768
[Abstract]:As an important part of the theory of administrative right of action, the essence of administrative right of action is closely related to the purpose of litigation, and has a direct influence on the content and elements of right of action. Theoretically, the nature of the administrative right of action has not reached a consensus. Due to the differences in the basis of the teleology of litigation or the research horizon, there is still a lack of unified judgment criteria. Taking the examination of the court as the unified criterion, it can set up the common dialogue platform for each theory. According to the standard that the court needs to complete the examination method when judging the elements of the administrative right of action, each theory of the right of action can be classified into two camps, namely, the theory of substantive conditional right of action and the theory of formal conditional right of action. Due to the fact that the conclusion of the right of action is out of touch with the actual situation, the theory of the right of action has some defects, such as the misunderstanding of the untried judgment, and so on. However, the theory of the formal condition of the right of action can ensure that the conclusion of the right of action is consistent with the actual situation, and effectively resolve the difficulty of filing the case. Strengthen the objective legal order maintenance of the administrative litigation function model, so the latter is preferable. At present, the theory of abstract right of action, the theory of claim of judicial act and the theory of constitutional right of action are still deficient in the camp of formal condition right of action. As a revised version of the theory of claim right of judicial act, the theory of hierarchy of right of action should be advocated.
【作者单位】： 武汉大学法学院;
【基金】：国家社科基金一般项目“我国行政诉讼立案登记制良性运行研究”(项目编号:16BFX048)的阶段性研究成果
【分类号】：D925.3
，
本文编号：2309768
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