行政诉讼确认无效判决适用标准研究
发布时间：2019-04-21 15:19
【摘要】：2000年,我国以司法解释的形式增设确认无效判决,使之成为一种具有独立价值的判决形式。然而,由于适用确认无效判决的审查标准不明,学界对于司法解释中“依法不成立或者无效”的理解纷纭,未有共识。实务界对此判决类型亦少用慎用,限制了确认无效判决作用的发挥。2014年,新《行政诉讼法》第75条对确认无效判决予以明确规定,引入了“重大且明显”违法的审查标准,并对具体违法情形予以示例。各级法院也积极适用确认无效判决,但适用标准缺乏一致性。确认无效判决制度在我国尚处于起步阶段,新法出台虽极大地促进了确认无效判决在司法实践中的适用,但统一的适用标准才是确认无效判决发展的理性轨道。故本文通过文本分析和判例研究的方法,对确认无效判决的适用标准展开研究。新法出台前,确认无效判决在实践中鲜有适用,适用标准多以实体法上的无效规定为依据,最为普遍的是转致适用《行政处罚法》第3条和第41条。若无实体法上的规定,即使行政行为已臻“重大且明显”之违法程度,有些法院也以撤销判决或确认违法判决代替之,出现了一些同案不同判的现象。新法出台后,虽然法律规定更加明确,但在实践中仍存在法律适用不一致的情形。主要体现在以下几个方面:第一,关于“不具有行政主体资格”的认定,有的法院扩大理解为“不具有行使某职权的资格”,导致其与“超越职权”混同;第二,关于“没有依据”的认定,有的法院将其理解为行政行为欠缺事实基础。基于婚姻关系特殊性的考虑,除了婚姻登记类案件,其他欠缺事实基础的行政行为应认定为“主要证据不足”。而欠缺事实基础的行政协议类纠纷,应依据新司法解释第15条第2款作出判决。有的法院将行政机关作出行为欠缺法律法规的授权认定为“没有依据”,这实际上将“超越职权”与“没有依据”混同。第三,有的判决甚至径直以“超越职权”、“主要证据不足”和“适用法律错误”为由,作出确认无效判决。以上错误认识需要厘清,否则将会扩大适用确认无效判决的任意性,混淆撤销判决与确认无效判决的界限。通过对司法判例的分析,本文归纳出新《行政诉讼法》背景下的确认无效判决的适用标准:“不具有行政主体资格”是指具备行政权能但不具有行政主体其他资格的主体,如内设机构、下属部门和派出机构等以自己的名义所作出的行政行为。“没有依据”是指行政机关在作出行为时仅依据政府会议纪要,而会议纪要内容违反法律法规规定,或者行政机关在诉讼中既未提交答辩状,亦未提供法律依据的情形。本文还对“等重大且明显违法情形”在司法实践中的具体表现进行探索,整理归纳出如下情形:行政决定未加盖公章、行政决定未合法送达、内部行政行为外化、行政行为违反法律、法规的强制性规定和权属证书、法律凭证系无效证件等。在确认无效判决及相关制度发展初期,法院应以审慎之态度、准确之理解、统一之标准适用该判决方式,厘清其与撤销判决和确认违法判决的界限。明晰统一的裁判标准是确认无效判决发挥其独特制度功能的前提,故而,本文希望藉由对确认无效判决判例的研究,厘清司法实践中的错误倾向,并为进一步统一确认无效判决的司法适用提供一定参考。
[Abstract]:In 2000, in the form of judicial interpretation, our country added an invalid judgment to make it a form of judgment with independent value. However, because the criteria for the review of the application of the invalid decision are not clear, there is no consensus on the understanding of the "Not established or invalid according to law" in the judicial interpretation. In 2014, the new Code of Administrative Procedure, in article 75, expressly provided for the recognition of an invalid decision, introducing a significant and significant "violation of the standards of the review" and taking an example of the specific violations. The courts at all levels are also active in the recognition of invalid judgements, but the applicable standards lack consistency. The confirmation of the invalid decision system is still in the initial stage in our country. The new law has greatly promoted the application of the invalid decision in the judicial practice, but the uniform application standard is the rational track to confirm the development of the invalid decision. Therefore, through the text analysis and the case study method, this paper studies the application standard to confirm the invalid decision. Before the new law is in place, it is difficult to confirm that the invalid judgment is rarely applied in practice. The applicable standard is based on the invalid provisions of the substantive law. The most common is the application of the Administrative Punishment Law> Article 3 and Article 41. In the absence of substantive law, even if the administrative act is in the "Major and obvious" of the law of the law, some courts have replaced the judgment or the confirmation of the illegal judgment, and some cases of the same case have been found. After the introduction of the new law, although the provisions of the law are more clear, there is still a case where the law is not in conformity in practice. It is mainly reflected in the following aspects: first, with regard to the determination of the absence of the qualification of administrative subject, the court extended its understanding that it does not have the competence to exercise a certain authority ", resulting in the" mixed "with the above-mentioned mandate"; secondly, with regard to the determination that there is no basis", the court will understand it as the foundation of the lack of the facts of administrative act. Based on the particularity of the marital relationship, in addition to the marriage registration case, other administrative acts that lack the basis of the fact should be recognized as the "Major insufficient evidence". In the absence of a factual basis of an administrative agreement, a judgment shall be made in accordance with article 15, paragraph 2, of the new judicial interpretation. In fact, the "to go beyond the authority" and the "No evidence" have been mixed with the "No evidence". Third, some of the sentences are made by "to go beyond the authority", "Major insufficient evidence" and "Wrong applicable law", and an invalid decision is made. The above false understanding needs to be clarified, otherwise, the arbitrariness of the application of the invalid judgment will be expanded, and the boundary between the revocation of the judgment and the invalid judgment shall be confused. Through the analysis of the judicial precedent, this paper sums up the applicable standard of the recognition of the invalid judgment in the background of the New Administrative Procedure Law: the "No administrative subject qualification" refers to the main body with the executive power but not the other qualification of the administrative subject, such as the internal organization, The administrative actions taken by the subordinate departments and the dispatched agencies in their own name. The "No evidence" refers to the case where the administrative organ only according to the meeting minutes of the government when the act is made, and the content of the meeting minutes is in violation of the provisions of the laws and regulations, or the administrative organ neither submits the defense nor provides the legal basis in the proceedings. The article also explores the concrete performance of the "in that case of major and obvious violations" in the judicial practice, and summarizes the following situations: the administrative decision has not been affixed with the official seal, the administrative decision is not legally delivered, the internal administrative act is externalized, the administrative act is in violation of the mandatory provisions of laws and regulations and the ownership certificate, The legal certificate is an invalid document, etc. In that early stage of the confirmation of the invalid decision and the development of the related system, the court should make a prudent and accurate understanding, and the unified standard apply to the decision way and clarify its limit to the revocation of the sentence and the confirmation of the illegal sentence. The clear and unified judgment standard is the premise of confirming that the invalid judgment plays its unique system function. Therefore, it is the hope of this paper to clarify the wrong tendency in the judicial practice and provide some reference for the further unification and confirmation of the judicial application of the invalid judgment.
【学位授予单位】：上海师范大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D925.3
本文编号：2462327
[Abstract]:In 2000, in the form of judicial interpretation, our country added an invalid judgment to make it a form of judgment with independent value. However, because the criteria for the review of the application of the invalid decision are not clear, there is no consensus on the understanding of the "Not established or invalid according to law" in the judicial interpretation. In 2014, the new Code of Administrative Procedure, in article 75, expressly provided for the recognition of an invalid decision, introducing a significant and significant "violation of the standards of the review" and taking an example of the specific violations. The courts at all levels are also active in the recognition of invalid judgements, but the applicable standards lack consistency. The confirmation of the invalid decision system is still in the initial stage in our country. The new law has greatly promoted the application of the invalid decision in the judicial practice, but the uniform application standard is the rational track to confirm the development of the invalid decision. Therefore, through the text analysis and the case study method, this paper studies the application standard to confirm the invalid decision. Before the new law is in place, it is difficult to confirm that the invalid judgment is rarely applied in practice. The applicable standard is based on the invalid provisions of the substantive law. The most common is the application of the Administrative Punishment Law> Article 3 and Article 41. In the absence of substantive law, even if the administrative act is in the "Major and obvious" of the law of the law, some courts have replaced the judgment or the confirmation of the illegal judgment, and some cases of the same case have been found. After the introduction of the new law, although the provisions of the law are more clear, there is still a case where the law is not in conformity in practice. It is mainly reflected in the following aspects: first, with regard to the determination of the absence of the qualification of administrative subject, the court extended its understanding that it does not have the competence to exercise a certain authority ", resulting in the" mixed "with the above-mentioned mandate"; secondly, with regard to the determination that there is no basis", the court will understand it as the foundation of the lack of the facts of administrative act. Based on the particularity of the marital relationship, in addition to the marriage registration case, other administrative acts that lack the basis of the fact should be recognized as the "Major insufficient evidence". In the absence of a factual basis of an administrative agreement, a judgment shall be made in accordance with article 15, paragraph 2, of the new judicial interpretation. In fact, the "to go beyond the authority" and the "No evidence" have been mixed with the "No evidence". Third, some of the sentences are made by "to go beyond the authority", "Major insufficient evidence" and "Wrong applicable law", and an invalid decision is made. The above false understanding needs to be clarified, otherwise, the arbitrariness of the application of the invalid judgment will be expanded, and the boundary between the revocation of the judgment and the invalid judgment shall be confused. Through the analysis of the judicial precedent, this paper sums up the applicable standard of the recognition of the invalid judgment in the background of the New Administrative Procedure Law: the "No administrative subject qualification" refers to the main body with the executive power but not the other qualification of the administrative subject, such as the internal organization, The administrative actions taken by the subordinate departments and the dispatched agencies in their own name. The "No evidence" refers to the case where the administrative organ only according to the meeting minutes of the government when the act is made, and the content of the meeting minutes is in violation of the provisions of the laws and regulations, or the administrative organ neither submits the defense nor provides the legal basis in the proceedings. The article also explores the concrete performance of the "in that case of major and obvious violations" in the judicial practice, and summarizes the following situations: the administrative decision has not been affixed with the official seal, the administrative decision is not legally delivered, the internal administrative act is externalized, the administrative act is in violation of the mandatory provisions of laws and regulations and the ownership certificate, The legal certificate is an invalid document, etc. In that early stage of the confirmation of the invalid decision and the development of the related system, the court should make a prudent and accurate understanding, and the unified standard apply to the decision way and clarify its limit to the revocation of the sentence and the confirmation of the illegal sentence. The clear and unified judgment standard is the premise of confirming that the invalid judgment plays its unique system function. Therefore, it is the hope of this paper to clarify the wrong tendency in the judicial practice and provide some reference for the further unification and confirmation of the judicial application of the invalid judgment.
【学位授予单位】：上海师范大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D925.3
【参考文献】
相关期刊论文 前10条
1 黄涧秋;;行政诉讼确认无效判决的法律适用评析——围绕新《行政诉讼法》第75条展开[J];法治研究;2016年05期
2 侯丹华;;新《行政诉讼法》中几种特殊类型诉讼的判决方式[J];法律适用;2016年08期
3 梁君瑜;;论行政诉讼中的确认无效判决[J];清华法学;2016年04期
4 梁君瑜;;行政行为无效确认之诉的理论内核与制度前景[J];理论月刊;2016年07期
5 陈玉领;;确认无效判决司法适用论[J];福建法学;2014年02期
6 邓刚宏;;我国行政诉讼诉判关系的新认识[J];中国法学;2012年05期
7 王锴;;具体行政行为的成立与生效之区分[J];政治与法律;2012年10期
8 关保英;;论行政超越职权[J];社会科学战线;2011年11期
9 张旭勇;;权利保护的法治限度——无效行政行为理论与制度的反思[J];法学;2010年09期
10 周伟;;通过案例解释法律:最高人民法院案例指导制度的发展[J];当代法学;2009年02期
相关重要报纸文章 前2条
1 王逸吟;;开启行政审判新时代[N];光明日报;2015年
2 杨建顺;;“行政主体资格”有待正确解释[N];检察日报;2015年
，本文编号：2462327
本文链接：https://www.wllwen.com/falvlunwen/susongfa/2462327.html
