论行政规范性文件审查之诉的构建
发布时间：2019-04-09 15:36
【摘要】：制定行政规范性文件的活动在实践中大量存在,从加强和健全行政管理和行政法制看,有其合理性和必然性,行政机关制定的行政规范性文件在实践中发挥着重要作用,成为我国法治政府建设的重要力量。它弥补了法律漏洞,适应复杂多变的行政管理和现实生活需要;推动了行政机关依法行政,为行政管理提供不可或缺的重要依据;调动了各级政府及其工作人员的积极性、主动性。只是行政规范性文件一旦出现违法或者不适当,其影响的范围是广泛的。这对政府的公信力是一种挑战。目前,我国现行行政诉讼制度排除了对行政规范性文件的审查,这并不利于保护行政相对人的合法权益,亦与依法行政的宗旨及有权利即有救济的法治理念相悖。笔者在分析了我国行政规范性文件监督的现状的基础上,认为有必要将行政规范性文件纳入司法审查的范围,构建具有中国特色的规范性文件审查之诉。本文共分为六个部分:第一部分首先以一个典型的案例入手,指出行政规范性文件违法给行政相对人造成的伤害,我国司法在处理此类案件的常规做法。旨在引出问题来解决这种尴尬的司法境地。其次,总结关于行政规范性文件审查之诉的国内外研究现状,研究意义及研究方法。第二部分主要介绍行政规范性文件审查之诉的基本情况,其中包括行政规范性文件概念界定、特征及效力。我国目前对行政规范性文件的监督现状及这几种监督方式存在的缺陷。在我国构建行政规范性文件审查之诉的必要性及可行性。第三部分主要是对我国构建行政规范性文件审查之诉的理论基础进行分析。从四个方面对我国构建行政规范性文件审查之诉的可行性进行探讨。即:理论基础,组织基础,制度基础和社会基础。第四部分主要是对域外行政规范性文件审查之诉的研究,通过比较研究提出构建我国行政规范性文件审查之诉的模式。第五部分主要是对我国规范性文件审查之诉的构建的阐述,主要是从立法模式选择入手,提出构建我国规范性文件诉讼的具体制度设计,从原告资格、举证责任、审查主体、管辖主体、审查依据、审理方式、判决类型等几方面着手,构建具有中国特色的规范性文件审查之诉。第六部分是结论,对文章主要观点进行归纳。
[Abstract]:The activities of formulating administrative normative documents exist in a large number in practice. From the point of view of strengthening and perfecting administrative management and administrative legal system, there is its rationality and inevitability. The administrative normative documents formulated by administrative organs play an important role in practice. Become our country rule of law government construction important strength. It makes up for the legal loopholes, adapts to the complex and changeable administrative management and the real life needs, promotes the administrative organs to administer according to law, and provides the indispensable important basis for the administrative management; It has mobilized the enthusiasm and initiative of all levels of government and its staff. However, once the administrative normative document appears illegal or inappropriate, the scope of its impact is broad. This is a challenge to the credibility of the government. At present, the current administrative litigation system in China excludes the examination of administrative normative documents, which is not conducive to the protection of the legitimate rights and interests of the administrative counterpart, but also contradicts the tenet of administrative administration according to law and the concept of rule of law in which there are rights and remedies. On the basis of analyzing the present situation of supervision of administrative normative documents in China, the author holds that it is necessary to bring administrative normative documents into the scope of judicial review, and to construct a suit of review of normative documents with Chinese characteristics. This paper is divided into six parts: the first part starts with a typical case and points out the harm caused by the violation of administrative normative documents to the administrative counterpart, and the judicial routine in dealing with such cases in our country. The aim is to lead to problems to solve this awkward judicial situation. Secondly, it summarizes the domestic and foreign research status, significance and research methods of the review of administrative normative documents. The second part mainly introduces the basic situation of the review of administrative normative documents, including the definition, characteristics and effectiveness of administrative normative documents. The present situation of supervision of administrative normative documents in China and the defects of these supervision methods. The necessity and feasibility of constructing the lawsuit of administrative normative document review in our country. The third part mainly analyzes the theoretical basis of constructing the lawsuit of administrative normative document review in our country. This paper discusses the feasibility of constructing the lawsuit of administrative normative document review in China from four aspects. That is: theoretical basis, organizational basis, institutional basis and social basis. The fourth part is mainly on the extraterritorial administrative normative documents review of the litigation, through comparative research put forward the construction of China's administrative normative documents review of the litigation model. The fifth part is mainly to our country normative document review lawsuit construction elaboration, mainly starts from the legislative pattern choice, proposed constructs our country normative document lawsuit concrete system design, from the plaintiff qualification, the burden of proof, the examination main body, The subject of jurisdiction, the basis of examination, the way of hearing, the type of judgment and so on, set out to construct the lawsuit of review of normative documents with Chinese characteristics. The sixth part is the conclusion, to the article main point of view carries on the induction.
【学位授予单位】：电子科技大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D922.1
，
本文编号：2455301
[Abstract]:The activities of formulating administrative normative documents exist in a large number in practice. From the point of view of strengthening and perfecting administrative management and administrative legal system, there is its rationality and inevitability. The administrative normative documents formulated by administrative organs play an important role in practice. Become our country rule of law government construction important strength. It makes up for the legal loopholes, adapts to the complex and changeable administrative management and the real life needs, promotes the administrative organs to administer according to law, and provides the indispensable important basis for the administrative management; It has mobilized the enthusiasm and initiative of all levels of government and its staff. However, once the administrative normative document appears illegal or inappropriate, the scope of its impact is broad. This is a challenge to the credibility of the government. At present, the current administrative litigation system in China excludes the examination of administrative normative documents, which is not conducive to the protection of the legitimate rights and interests of the administrative counterpart, but also contradicts the tenet of administrative administration according to law and the concept of rule of law in which there are rights and remedies. On the basis of analyzing the present situation of supervision of administrative normative documents in China, the author holds that it is necessary to bring administrative normative documents into the scope of judicial review, and to construct a suit of review of normative documents with Chinese characteristics. This paper is divided into six parts: the first part starts with a typical case and points out the harm caused by the violation of administrative normative documents to the administrative counterpart, and the judicial routine in dealing with such cases in our country. The aim is to lead to problems to solve this awkward judicial situation. Secondly, it summarizes the domestic and foreign research status, significance and research methods of the review of administrative normative documents. The second part mainly introduces the basic situation of the review of administrative normative documents, including the definition, characteristics and effectiveness of administrative normative documents. The present situation of supervision of administrative normative documents in China and the defects of these supervision methods. The necessity and feasibility of constructing the lawsuit of administrative normative document review in our country. The third part mainly analyzes the theoretical basis of constructing the lawsuit of administrative normative document review in our country. This paper discusses the feasibility of constructing the lawsuit of administrative normative document review in China from four aspects. That is: theoretical basis, organizational basis, institutional basis and social basis. The fourth part is mainly on the extraterritorial administrative normative documents review of the litigation, through comparative research put forward the construction of China's administrative normative documents review of the litigation model. The fifth part is mainly to our country normative document review lawsuit construction elaboration, mainly starts from the legislative pattern choice, proposed constructs our country normative document lawsuit concrete system design, from the plaintiff qualification, the burden of proof, the examination main body, The subject of jurisdiction, the basis of examination, the way of hearing, the type of judgment and so on, set out to construct the lawsuit of review of normative documents with Chinese characteristics. The sixth part is the conclusion, to the article main point of view carries on the induction.
【学位授予单位】：电子科技大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D922.1
，
本文编号：2455301
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