基于村务公开的行政诉讼研究

发布时间：2018-05-12 11:29

本文选题：司法裁判 + 村务公开　；参考：《郑州大学》2017年硕士论文

【摘要】：村务公开是我国村委会组织法规定的保障村民自治制度健康运行的重要方式,是维护村民知情权和监督权的必要途径,是防止村民自治组织和村干部滥用权力、以权谋私的主要手段。在司法实践中,由于村委会的行政主体地位尚未被法院广泛认可,村务公开争议发生后,村民不能直接以村委会为被告提起诉讼。而村委会组织法第三十一条规定当村委会不及时公布或者不真实公布应当公布的事项,村民可以向乡镇政府或者县级政府及有关主管部门反映,有关政府及管理部门应当进行调查和核实,责令依法公布。因此,目前村民请求法院解决村务公开争议的渠道是先申请乡镇政府或者县级政府及有关主管部门进行调查处理,当有关政府或者主管部门不依法履行对村务公开争议进行调查处理职责时,村民可以该行政机关为被告提起行政诉讼,此即基于村务公开的行政诉讼。这种行政诉讼主要解决行政机关是否履行监督村务公开的职责的问题以及村民与村民自治组织之间的村务公开争议。基于村务公开的行政诉讼为村民的知情权和监督权受到侵犯时提供了救济渠道,然而其也存在诸多问题。通过分析、归纳和总结我国法院的相关裁判文书,其问题主要表现在,一是相关法律对村务公开规定不完善,法院对相同问题与争议的裁决存在不统一之处,不利于村民知情权的保障;二是法律规范冲突的解决机制缺位,法院适用违反上位法的规范时无法救济;三是法院不认可村委会被告资格,使得村民寻求司法救济过程复杂,增加了村民的诉讼负担。最后在分析基于村务公开的行政诉讼现存问题的基础上提出了完善建议,以期当村务公开争议发生后,为村民知情权和监督权的司法保障研究提供参考。
[Abstract]:The openness of village affairs is an important way to ensure the healthy operation of the villagers' autonomy system stipulated in the Organic Law of the Village Committee of our country. It is a necessary way to safeguard the villagers' right to know and supervise, and to prevent the villagers' autonomous organizations and village cadres from abusing their power. The main means of abuse of power for personal gain. In judicial practice, because the status of the administrative subject of the village committee has not been widely recognized by the court, villagers can not directly take the village committee as the defendant after the village affairs open dispute occurs. Article 31 of the Organic Law of the Village Committee stipulates that when the village committee fails to publish in a timely or untrue manner, the villagers may reflect the matter to the township government or the county government and the relevant competent departments. The relevant government and administrative departments shall carry out investigations and verification and order them to be promulgated in accordance with the law. Therefore, at present, the channel through which villagers request the court to resolve open disputes about village affairs is to first apply for the township government or county government and the relevant competent departments to investigate and handle the dispute. When the relevant government or competent department does not perform the duty of investigating and handling the open dispute of village affairs according to law, the villager may file administrative suit for the defendant, which is based on the administrative lawsuit of open village affairs. This kind of administrative lawsuit mainly solves the question whether the administrative organ performs the duty of supervising the village affairs open and the dispute between the villagers and the villagers' autonomous organization. Administrative litigation based on village affairs open provides relief channels for villagers' right to know and supervision when infringed, but there are many problems. Through the analysis, summarizes and summarizes our country's court related adjudication document, its question mainly manifests in: first, the related law to the village affairs public stipulation is not perfect, the court to the same question and the dispute ruling existence does not unify place, It is not conducive to the protection of villagers' right to know; the second is the absence of a mechanism for resolving conflicts between laws and norms, and the court cannot remedy the violation of the norms of the superior law; third, the court does not recognize the qualification of the village committee as a defendant, which makes the process of seeking judicial relief for villagers complicated. Increased the burden of litigation on the villagers. Finally, on the basis of analyzing the existing problems of administrative litigation based on village affairs publicity, the author puts forward some suggestions, in order to provide a reference for the study of the villagers' right to know and the judicial guarantee of supervision right after the village affairs open dispute.
【学位授予单位】：郑州大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D921.8

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