我国行政给付诉讼研究
发布时间：2019-04-02 08:05
【摘要】：行政给付诉讼是指原告依据法定或约定的给付请求权,请求法院判决被告承担给付义务的诉讼。其诉讼标的既包括金钱或其他物质利益的给付,也包括一定行为的给付。行政给付诉讼具有诉讼种类的多样性,争讼对象的广泛性,诉讼功能的多重性以及诉讼两造的变动性之四大特征。行政给付诉讼的发展与完善既有助于敦促政府履行给付义务,增进公民福祉,也有助于丰富我国的行政诉讼类型,促进诉讼类型理论的完善。通过研究,本文发现,与域外先进的理论和立法实践相比,我国行政给付诉讼存在着概念未法定化,给付诉讼未类型化,受案范围过窄以及程序不健全等方面的问题。这些问题一方面反映了我国对行政给付诉讼的理论研究不够充分,另一方面也折射出我国行政给付诉讼立法的不完善。研究目的是详细阐述行政给付诉讼的一般理论,并简单介绍域外给付诉讼的理论成果和立法实践,在此基础之上,归纳我国现有法律规定下的行政给付诉讼类型,并着眼于我国行政给付诉讼制度存在的问题提出完善该项制度的建议。具体的制度完备包括在立法中明确提出行政给付诉讼这一概念,以概括性条款的形式规定其受案范围。在对我国现有行政给付诉讼类型归纳的同时增加财产型给付诉讼中的行政契约给付诉讼以及主要针对行政事实行为的非财产给付诉讼。行政给付诉讼的完善除了要对其实体内容全面理解把握外,还需要对行政给付诉讼的运作规则进行特别的设计。明确起诉条件以及审理规则,针对行政给付诉讼原告资格的特殊性建议对其做特别的立法设计,明确法院审理此类型行政诉讼的重点是审查原告是否享有给付请求权。还需扩大行政给付诉讼适用调解程序的范围,增加给付判决形式,从多角度使行政给付诉讼的程序得以健全。研究方法包括案例研究法,通过案例的引入,更好地阐释相关概念或说明问题;比较研究法,对域外先进的立法实践和理论研究取得的成果加以借鉴;实证研究法,在我国现有的法律规定及政策文件中,探寻我国的实际做法,并指出其问题所在。
[Abstract]:Administrative payment action refers to the action that plaintiff requests defendant to assume the obligation of payment according to the legal or agreed right of claim for payment. The object of action includes not only the payment of money or other material interests, but also the payment of certain acts. Administrative payment litigation has four characteristics: the variety of litigation types, the wide range of litigant objects, the multiplicity of litigation functions and the variation of litigation and litigation. The development and perfection of administrative benefit litigation is not only helpful to urge the government to fulfill its obligation of payment, but also helpful to enrich the types of administrative litigation in our country and to perfect the theory of litigation type. Through the research, this paper finds that compared with the advanced theory and legislative practice outside the territory, there are some problems in the administrative payment litigation in our country, such as the concept is not legalized, the payment litigation is not typed, the scope of accepting the case is too narrow, and the procedure is not perfect, and so on. On the one hand, these problems reflect the insufficient theoretical research on administrative payment litigation in our country, on the other hand, it also reflects the imperfection of the administrative payment litigation legislation in our country. The purpose of the study is to elaborate on the general theory of administrative payment litigation, and to introduce briefly the theoretical achievements and legislative practice of extraterritorial payment litigation. On this basis, the types of administrative payment litigation under the existing laws in China are summarized. At the same time, the author puts forward some suggestions to improve the system of administrative payment litigation system in view of the problems existing in the system of administrative payment litigation. The specific system is complete, including clearly put forward the concept of administrative payment litigation in the legislation, and define the scope of accepting cases in the form of general clauses. At the same time, the administrative contract litigation and the non-property payment litigation, which are mainly aimed at the administrative factual acts, are added to the existing administrative payment litigation in our country as well as the administrative contract litigation in the property-type payment litigation as well as the non-property payment litigation. The perfection of administrative payment litigation should not only fully understand its substantive content, but also make a special design of the operation rules of administrative payment litigation. In view of the particularity of plaintiff's qualification in administrative payment litigation, it is suggested that special legislative design should be made for the prosecution conditions and trial rules. It is clear that the focus of the court hearing this type of administrative litigation is to examine whether plaintiff enjoys the right of claim for payment. It is also necessary to expand the scope of the mediation procedure applied to the administrative payment litigation, to add the form of the award judgment, and to make the administrative payment procedure perfect from many angles. The research methods include case study method, through the introduction of cases, better explanation of related concepts or problems, comparative research method, the advanced extraterritorial legislative practice and theoretical research to learn from the results; Empirical study, in the existing legal provisions and policy documents, explores the practical practice of our country, and points out where its problems lie.
【学位授予单位】：辽宁大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D925.3
本文编号：2452398
[Abstract]:Administrative payment action refers to the action that plaintiff requests defendant to assume the obligation of payment according to the legal or agreed right of claim for payment. The object of action includes not only the payment of money or other material interests, but also the payment of certain acts. Administrative payment litigation has four characteristics: the variety of litigation types, the wide range of litigant objects, the multiplicity of litigation functions and the variation of litigation and litigation. The development and perfection of administrative benefit litigation is not only helpful to urge the government to fulfill its obligation of payment, but also helpful to enrich the types of administrative litigation in our country and to perfect the theory of litigation type. Through the research, this paper finds that compared with the advanced theory and legislative practice outside the territory, there are some problems in the administrative payment litigation in our country, such as the concept is not legalized, the payment litigation is not typed, the scope of accepting the case is too narrow, and the procedure is not perfect, and so on. On the one hand, these problems reflect the insufficient theoretical research on administrative payment litigation in our country, on the other hand, it also reflects the imperfection of the administrative payment litigation legislation in our country. The purpose of the study is to elaborate on the general theory of administrative payment litigation, and to introduce briefly the theoretical achievements and legislative practice of extraterritorial payment litigation. On this basis, the types of administrative payment litigation under the existing laws in China are summarized. At the same time, the author puts forward some suggestions to improve the system of administrative payment litigation system in view of the problems existing in the system of administrative payment litigation. The specific system is complete, including clearly put forward the concept of administrative payment litigation in the legislation, and define the scope of accepting cases in the form of general clauses. At the same time, the administrative contract litigation and the non-property payment litigation, which are mainly aimed at the administrative factual acts, are added to the existing administrative payment litigation in our country as well as the administrative contract litigation in the property-type payment litigation as well as the non-property payment litigation. The perfection of administrative payment litigation should not only fully understand its substantive content, but also make a special design of the operation rules of administrative payment litigation. In view of the particularity of plaintiff's qualification in administrative payment litigation, it is suggested that special legislative design should be made for the prosecution conditions and trial rules. It is clear that the focus of the court hearing this type of administrative litigation is to examine whether plaintiff enjoys the right of claim for payment. It is also necessary to expand the scope of the mediation procedure applied to the administrative payment litigation, to add the form of the award judgment, and to make the administrative payment procedure perfect from many angles. The research methods include case study method, through the introduction of cases, better explanation of related concepts or problems, comparative research method, the advanced extraterritorial legislative practice and theoretical research to learn from the results; Empirical study, in the existing legal provisions and policy documents, explores the practical practice of our country, and points out where its problems lie.
【学位授予单位】：辽宁大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D925.3
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