行政首长出庭应诉制度的理性认识
发布时间：2018-09-04 12:09
【摘要】：以《中华人民共和国行政诉讼法》的颁布实施为标志,我国具有中国特色的行政诉讼制度建立至今已近25年。这项“民告官”的法律制度的实施和行政审判工作的开展,对于推进依法治国,促进依法行政,保护公民权利,化解行政争议,服务国家大局、维护社会稳定,都具有不可替代的重要地位和作用。行政诉讼是行政救济的一种,也是最具有鲜明民主特质的法律制度之一,在规范行政机关行为、维护行政相对人权益方面发挥不可替代的作用。行政首长出庭应诉是指行政相对人依法向人民法院提起行政诉讼,被诉行政机关的负责人作为被告亲自参加庭审、应诉辩护的一项诉讼制度。该制度的实施使行政首长在庭审过程中对行政主体所做具体行政行为合法与否形成直观了解,同时也扭转了被告缺席判决对维护行政审判权威的不利影响。实践证明,行政首长出庭应诉制度确实在一定程度上改善行政诉讼审理难、裁判难、执行难问题,行政首长出庭应诉制度作为中国特色法治建设的制度探索,不失为推动行政审判迈近公平正义的一条良方。我国行政首长出庭应诉制度的发展和实践,大致经历了两个阶段。自1990年10月1日起《行政诉讼法》施行,到2004年国务院颁布《全面推进依法行政实施纲要》及最高人民法院出台《关于加强和改进行政审判工作的意见》前为第一阶段。该阶段行政首长出庭应诉制度属个别地方“民间创举”,发展相对缓慢。2004年至今为第二阶段,国务院与最高人民法院关于行政首长出庭应诉制度的指导性规定出台,标志着行政首长出庭应诉这一“民间创举”一跃上升为国家支持鼓励的一项制度。时至今日,行政首长出庭应诉已经成为法院、政府所共同力推的重要改革举措之一。纵观世界各国的行政诉讼制度,以法定形式要求行政负责人出庭应诉的极为少见。我国行政首长出庭应诉制度并非复制国外先进诉讼制度的“舶来品”,而恰恰是极具中国特色、“土生土长”的新制度,确是带有鲜明中国特色与时代特征的产物,值得深入研究与探讨。目前,在我国法学界的研究中,对于行政首长出庭应诉制度的定位存在不同认识,一种观点认为它是社会主义法治国家建设进程中阶段性解决行政诉讼困境的权宜之计。另一种观点倡导将行政首长出庭应诉作为一种固定制度长期存在,并实现法定化。本文以我国行政首长出庭应诉制度的产生发展为基础,通过对其演进过程和相关规范性文件研究,对这项制度的合理定位、发展前景、需要解决的突出问题进行初步的讨论;在此基础上,对这项制度的最终定位及完善,提出了自己的解决建议。
[Abstract]:Marked by the promulgation and implementation of the Administrative Litigation Law of the people's Republic of China, the administrative litigation system with Chinese characteristics has been established in China for nearly 25 years. The implementation of this legal system of "people suing officials" and the development of administrative trials will promote the rule of law, promote administration according to law, protect citizens' rights, resolve administrative disputes, serve the overall situation of the country, and safeguard social stability. All have irreplaceable important position and function. Administrative litigation is a kind of administrative relief and one of the most distinctive democratic legal systems. It plays an irreplaceable role in standardizing the behavior of administrative organs and safeguarding the rights and interests of administrative counterparts. The administrative head appearing in court is a lawsuit system in which the administrative counterpart brings an administrative lawsuit to the people's court according to law and the person in charge of the accused administrative organ attends the trial personally as the defendant. The implementation of this system makes the executive head know directly whether the specific administrative act done by the administrative subject is legal or not in the course of the trial, and also reverses the adverse effect of the defendant's default judgment on the maintenance of the authority of the administrative trial. Practice has proved that the system of administrative head appearing in court does improve to some extent the problems of difficult hearing, difficult adjudication and difficult execution of administrative litigation, and the system of administrative head appearing in court as the system of building the rule of law with Chinese characteristics. It is a good way to push the administrative trial closer to fairness and justice. There are two stages in the development and practice of the system of chief administrative officers appearing in court in our country. Since October 1, 1990, the Administrative Litigation Law has been in force, until the State Council promulgated the outline for the All-round Promotion of Administration according to Law in 2004 and the Supreme people's Court issued "opinions on strengthening and improving Administrative trial work" as the first stage. At this stage, the system of chief executives appearing in court is a "folk initiative" in individual places, and the development is relatively slow. Since 2004, the second stage has been the second stage. The guidance provisions of the State Council and the Supreme people's Court on the system of appearing in court for administrative heads have been issued. It marks the emergence of the chief executive in court as a system of state support and encouragement. Up to now, the chief executive has become one of the important reform measures of the court and the government. Throughout the world's administrative litigation system, it is rare to require the chief executive to appear in court in legal form. The system of chief administrative officers appearing in court in our country is not a copy of the foreign advanced litigation system, but a new system with Chinese characteristics. The new system of "native-born" is indeed the product of distinctive Chinese characteristics and the characteristics of the times. It is worthy of further study and discussion. At present, in the research of law circles in our country, there are different views on the orientation of the system of administrative chief appearing in court, one view is that it is an expedient measure to resolve the dilemma of administrative litigation in the process of building a socialist country ruled by law. Another point of view advocates that the chief executive appear in court as a fixed system for a long time, and achieve legalization. On the basis of the emergence and development of the system of chief executives appearing in court in our country, through the study of its evolution process and related normative documents, this paper makes a preliminary discussion on the reasonable orientation, development prospects and outstanding problems that need to be solved. On this basis, the final positioning and improvement of this system, put forward their own solutions.
【学位授予单位】：中国青年政治学院
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.3
本文编号：2222063
[Abstract]:Marked by the promulgation and implementation of the Administrative Litigation Law of the people's Republic of China, the administrative litigation system with Chinese characteristics has been established in China for nearly 25 years. The implementation of this legal system of "people suing officials" and the development of administrative trials will promote the rule of law, promote administration according to law, protect citizens' rights, resolve administrative disputes, serve the overall situation of the country, and safeguard social stability. All have irreplaceable important position and function. Administrative litigation is a kind of administrative relief and one of the most distinctive democratic legal systems. It plays an irreplaceable role in standardizing the behavior of administrative organs and safeguarding the rights and interests of administrative counterparts. The administrative head appearing in court is a lawsuit system in which the administrative counterpart brings an administrative lawsuit to the people's court according to law and the person in charge of the accused administrative organ attends the trial personally as the defendant. The implementation of this system makes the executive head know directly whether the specific administrative act done by the administrative subject is legal or not in the course of the trial, and also reverses the adverse effect of the defendant's default judgment on the maintenance of the authority of the administrative trial. Practice has proved that the system of administrative head appearing in court does improve to some extent the problems of difficult hearing, difficult adjudication and difficult execution of administrative litigation, and the system of administrative head appearing in court as the system of building the rule of law with Chinese characteristics. It is a good way to push the administrative trial closer to fairness and justice. There are two stages in the development and practice of the system of chief administrative officers appearing in court in our country. Since October 1, 1990, the Administrative Litigation Law has been in force, until the State Council promulgated the outline for the All-round Promotion of Administration according to Law in 2004 and the Supreme people's Court issued "opinions on strengthening and improving Administrative trial work" as the first stage. At this stage, the system of chief executives appearing in court is a "folk initiative" in individual places, and the development is relatively slow. Since 2004, the second stage has been the second stage. The guidance provisions of the State Council and the Supreme people's Court on the system of appearing in court for administrative heads have been issued. It marks the emergence of the chief executive in court as a system of state support and encouragement. Up to now, the chief executive has become one of the important reform measures of the court and the government. Throughout the world's administrative litigation system, it is rare to require the chief executive to appear in court in legal form. The system of chief administrative officers appearing in court in our country is not a copy of the foreign advanced litigation system, but a new system with Chinese characteristics. The new system of "native-born" is indeed the product of distinctive Chinese characteristics and the characteristics of the times. It is worthy of further study and discussion. At present, in the research of law circles in our country, there are different views on the orientation of the system of administrative chief appearing in court, one view is that it is an expedient measure to resolve the dilemma of administrative litigation in the process of building a socialist country ruled by law. Another point of view advocates that the chief executive appear in court as a fixed system for a long time, and achieve legalization. On the basis of the emergence and development of the system of chief executives appearing in court in our country, through the study of its evolution process and related normative documents, this paper makes a preliminary discussion on the reasonable orientation, development prospects and outstanding problems that need to be solved. On this basis, the final positioning and improvement of this system, put forward their own solutions.
【学位授予单位】：中国青年政治学院
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.3
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相关期刊论文 前3条
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