行政诉讼中“利害关系人”的资格认定及相关问题研究
发布时间：2019-05-20 09:34
【摘要】：我国《行政诉讼法》第二十七条和最高人民法院关于执行《中华人民共和国行政诉讼法》若干问题的解释第十二条的规定在界定原告和第三人的主体资格时都用到了“利害关系”一词,但对于“利害关系”确切含义,立法上并没有统一的界定。理论界对此也做了一定的讨论,但却一直争议不断,莫衷一是。立法与理论研究的空白导致实践中操作的混乱,在认定利害关系人的原告和第三人资格上,司法实践中常常出现混乱不一的现象,不同的法院依据各自的理解,对相同情况的利害关系人的资格做不一致的认定,这就使得类似情况的利害关系人处于不同的诉讼地位,并享有和承担不同的权利义务,不利于保障相对方的合法权益。本文就旨在对利害关系人的原告和第三人资格作合理的认定,理清不同利害关系人参与诉讼后的诉讼地位及享有的诉讼权利义务,约束法院的自由裁量权,从而更好的维护当事人的合法权益,实现司法实践中相对方与行政机关的实质平等。 本文主要分三章,第一章首先讨论“利害关系人”的含义,指出利害关系人的内涵和和外延,利害关系人的内涵包括三个要素,即相对方的合法权益、合法权益权益出现或可能出现增减以及行政行为或诉讼结果与相对方权益增减之间的因果关系。利害关系人的外延包括法律上利害关系人和事实上利害关系人。其次,从对利害关系人的资格认定及相关问题研究的及必要性方面阐释对利害关系人资格认定及相关相关权利、义务进行研究的意义。 第二章首先区分认定原告和第三人资格的“利害关系”的不同,认为认定原告的利害关系只包括法律上的利害关系,而认定第三人的利害关系则不仅包括法律上的利害关系人也包括事实上的利害关系人。在区分认定原告和第三人利害关系的基础之上,分析实践中不同情况利害关系人在原告和第三人主体资格享有方面的不同情况,这主要从法律上利害关系人和事实上利害关系人两种类型进行分析。法律上利害关系人中权益受损的利害关系人既有原告主体资格也有第三人主体资格,而权益未受损的利害关系人则只具有第三人主体资格。事实上利害关系人的权益一般不受被诉行政行为的直接影响,其仅与诉讼结果又一定的利害关系。.所以对于被诉行政行为,事实上利害关系人无权提起行政诉讼。 第三章是在对利害关系人的原告和第三人资格作清楚认定的基础之上,对与其相关的问题作探讨,主要包括对诉讼地位、举证责任和其他权利义务等做的研究。在第二章的基础上,文章将利害关系人分为资格互易型利害关系人和资格排斥型利害关系人两种类型,资格互易型利害关系人参与诉讼不论作原告还是第三人都具有当事人的诉讼地位,而且其作第三人与原告地位类似。资格排斥型利害关系人中,法律上利害关系人作第三人享有不完全当事人诉讼地位,且其地位类似于被告。事实上利害关系人一般不享有当事人地位。相关的其他权利主要摘取起诉权、上诉权以及撤诉权和提出管辖权异议的权利,义务方面则只对承担败诉后果的方式作了分析。
[Abstract]:Article 27 of the Administrative Procedure Law of China and Article 27 of the Supreme People's Court on the Interpretation of Article 12 of the Administrative Procedure Law of the People's Republic of China on the Implementation of the Administrative Procedure Law of the People's Republic of China, the term ""interest"" is used in the definition of the qualification of the plaintiff and the third person, but for the exact meaning of the "interest", There is no uniform definition of legislation. The theory circle has also made a certain discussion, but it has always been disputing. The blank of the legislation and the theoretical research has led to the confusion in practice, and in the determination of the plaintiff and the third person of the interested party, there is often a mixed phenomenon in the judicial practice, and the different courts according to the respective understanding, The discordant recognition of the qualifications of the interested parties in the same situation makes the interested parties of the similar situation in different legal status, and enjoys and assumes different rights and obligations, which is not conducive to the protection of the legitimate rights and interests of the other party. In this paper, the purpose of this paper is to make a reasonable determination of the plaintiff and the third person of the interested party, to clarify the litigation status of the different interested parties in the litigation and the rights and obligations of the litigation, and to restrict the discretionary power of the court, so as to better safeguard the legitimate rights and interests of the parties. To realize the substantive equality of the other party and the administrative organ in the judicial practice. This paper is divided into three chapters. The first chapter first discusses the meaning of the "interested party", points out the connotation and the extension of the interested party, and the connotation of the interested party includes three elements, that is, the legal right of the other party. The cause and effect of the increase or decrease of the interests and interests of the legitimate rights and interests and the increase or decrease of the administrative act or the result of the lawsuit and the other party's equity The extension of the interested party includes the legal stakeholders and the de facto interest Second, the meaning of the study on the identification of the interested parties and the related rights and obligations shall be explained from the study on the qualification of the interested parties and the necessity of the study. The second chapter first distinguishes between the "interest" of the plaintiff and the third person, and concludes that the interest of the plaintiff only includes the legal interest, and that the interest of the third person not only includes the legal interest, but also the de facto interest. On the basis of distinguishing the interests of the plaintiff and the third person, the interested parties of different situations in the practice have different situations in terms of the qualification of the plaintiff and the third person. Line analysis. The interested party in the interest of the interested party in the law has the qualification of the main body of the plaintiff and the third person, and the interested party whose equity is not damaged has only the third person. In fact, the interest of the interested party is generally not directly affected by the administrative act of the defendant, and it is only relevant to the result of the lawsuit In fact, the interested party does not have the right to raise a line. The third chapter, on the basis of the clear identification of the plaintiff and the third person of the interested party, discusses the related issues, mainly including the status of the litigation, the burden of proof and other rights and obligations. On the basis of the second chapter, the article divides the interested party into two types of the qualified reciprocal type interested party and the qualification rejection type interested party, and the qualification reciprocity type interested party is involved in the lawsuit, whether the plaintiff or the third person has the party. The status of the litigation, and it is the third person and the original in that case of an interested party, the third party in the law has the status of an incomplete party, and its status Similar to the defendant. In fact, the interested party generally does not. The status of a party. Other rights related are the right to the right to prosecution, the right to appeal and the right to withdraw and to raise the objection to the jurisdiction, and the party shall only be liable for the consequences of the failure.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.3
本文编号：2481554
[Abstract]:Article 27 of the Administrative Procedure Law of China and Article 27 of the Supreme People's Court on the Interpretation of Article 12 of the Administrative Procedure Law of the People's Republic of China on the Implementation of the Administrative Procedure Law of the People's Republic of China, the term ""interest"" is used in the definition of the qualification of the plaintiff and the third person, but for the exact meaning of the "interest", There is no uniform definition of legislation. The theory circle has also made a certain discussion, but it has always been disputing. The blank of the legislation and the theoretical research has led to the confusion in practice, and in the determination of the plaintiff and the third person of the interested party, there is often a mixed phenomenon in the judicial practice, and the different courts according to the respective understanding, The discordant recognition of the qualifications of the interested parties in the same situation makes the interested parties of the similar situation in different legal status, and enjoys and assumes different rights and obligations, which is not conducive to the protection of the legitimate rights and interests of the other party. In this paper, the purpose of this paper is to make a reasonable determination of the plaintiff and the third person of the interested party, to clarify the litigation status of the different interested parties in the litigation and the rights and obligations of the litigation, and to restrict the discretionary power of the court, so as to better safeguard the legitimate rights and interests of the parties. To realize the substantive equality of the other party and the administrative organ in the judicial practice. This paper is divided into three chapters. The first chapter first discusses the meaning of the "interested party", points out the connotation and the extension of the interested party, and the connotation of the interested party includes three elements, that is, the legal right of the other party. The cause and effect of the increase or decrease of the interests and interests of the legitimate rights and interests and the increase or decrease of the administrative act or the result of the lawsuit and the other party's equity The extension of the interested party includes the legal stakeholders and the de facto interest Second, the meaning of the study on the identification of the interested parties and the related rights and obligations shall be explained from the study on the qualification of the interested parties and the necessity of the study. The second chapter first distinguishes between the "interest" of the plaintiff and the third person, and concludes that the interest of the plaintiff only includes the legal interest, and that the interest of the third person not only includes the legal interest, but also the de facto interest. On the basis of distinguishing the interests of the plaintiff and the third person, the interested parties of different situations in the practice have different situations in terms of the qualification of the plaintiff and the third person. Line analysis. The interested party in the interest of the interested party in the law has the qualification of the main body of the plaintiff and the third person, and the interested party whose equity is not damaged has only the third person. In fact, the interest of the interested party is generally not directly affected by the administrative act of the defendant, and it is only relevant to the result of the lawsuit In fact, the interested party does not have the right to raise a line. The third chapter, on the basis of the clear identification of the plaintiff and the third person of the interested party, discusses the related issues, mainly including the status of the litigation, the burden of proof and other rights and obligations. On the basis of the second chapter, the article divides the interested party into two types of the qualified reciprocal type interested party and the qualification rejection type interested party, and the qualification reciprocity type interested party is involved in the lawsuit, whether the plaintiff or the third person has the party. The status of the litigation, and it is the third person and the original in that case of an interested party, the third party in the law has the status of an incomplete party, and its status Similar to the defendant. In fact, the interested party generally does not. The status of a party. Other rights related are the right to the right to prosecution, the right to appeal and the right to withdraw and to raise the objection to the jurisdiction, and the party shall only be liable for the consequences of the failure.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.3
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