行政诉讼阶段化构造改良论——基于程序正义与诉讼经济之双重价值诉求

发布时间：2019-05-03 18:04

【摘要】：基于程序正义与诉讼经济的双重价值诉求审视我国行政诉讼的起诉和受理、审前准备及开庭审理三个阶段,可以发现:起诉条件因部分吸纳诉讼要件与本案要件的内容而呈现“高阶化”之弊病,这使得本该后置审查的诉讼要件与本案要件面临重复审查与程序不公之窘境,进而走向诉讼经济与程序正义的反面;诉讼要件则因缺乏明确的审查阶段,或游走于审前准备阶段而丧失两造对抗辩论的充分程序保障,或与本案要件并行审查而架空案件过滤功能。为消解以上困境,有必要对我国行政诉讼之阶段化构造加以改良,亦即形成分别对起诉要件、诉讼要件、本案要件进行相对集中审查的立案阶段、程序审理阶段、实体审理阶段,并明确上述诸要件的功能定位及各阶段的运作机制。
[Abstract]:Based on the dual value appeal of procedural justice and litigation economy, this paper examines the prosecution and acceptance of administrative litigation in our country, the preparation before trial and the hearing of trial. It can be found that the conditions of prosecution show the disadvantage of "high-level" because of the inclusion of the elements of litigation and the elements of the case, which makes the elements of litigation and the elements of the case which should have been examined after review face the dilemma of repeated examination and unfair procedure. Then it goes to the opposite side of litigation economy and procedural justice; However, due to the lack of a clear review stage, or the lack of pre-trial preparation stage, the procedural guarantee of the confrontation debate between the two parties is lost, or the filtering function of overhead cases is due to parallel examination of the elements of the case. In order to clear up the above predicament, it is necessary to improve the stage structure of administrative litigation in our country, that is to say, it is necessary to form the filing stage and procedural hearing stage, in which the elements of prosecution, the elements of litigation, and the elements of this case are respectively examined in a centralized manner. Substantive trial stage, and clarify the functional positioning of the above elements and the operation mechanism of each stage.
【作者单位】：武汉大学法学院;
【分类号】：DF74

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