【作者】 刘行；

【导师】 高家伟；

【作者基本信息】 中国政法大学 ， 宪法学与行政法学， 2009， 博士

【摘要】 行政诉讼制度的生命和活动空间系于行政审判依据。人民法院以什么样的法律规范为行政审判依据,不仅直接涉及行政相对人合法权益的保护程度和对行政权力的制约力度,更是事关国家法制统一和宪政体制的重大问题。本文从行政审判依据的宪政分权原理纬度入手,以现实影响行政审判实践的各种因素为背景,围绕行政审判依据在行政诉讼过程中的三个环节,即“行政审判依据的发现”、“行政审判依据的选择”、“行政审判依据的适用”等问题展开研究,旨在通过分析现行行政审判依据制度的实践状况,创建符合宪政安排的行政审判依据框架及其运行规则体系,勉力探求切合中国特色的行政审判依据制度方案。第一,行政审判依据的理论基础。行政审判依据是法治国原理的一面镜子,映射着所有法治国家的一般原理。宪政分权是行政审判依据的逻辑起点。行政审判依据是各种国家权力(主体)交汇之地,集中体现了国家宪政框架内各权力之间的相互关系。司法独立的程度直接决定法院在行政审判依据上的自主程度,科学、合理设计行政审判依据制度离不开司法权在国家权力结构中地位的进一步提升。司法权的能动是有限度的,不能突破现行宪政体制“赶英超美”,而要在恪守司法权本位的基础上用足、用好司法权,在自身肩负的职责范围内积极地履行职责,维护公平,促进正义。行政审判依据的范围,总体上与我国法律渊源的范围基本相同。第二,行政审判依据的实践背景。行政审判依据是展现法治国实践的一个舞台,在这里,充满着影响其发现、选择和适用的各种因素。在处理政治与法治的关系上,需要维护党的领导地位,增强大局意识。法院内部上下级法院之间以及法官制度存在的行政化倾向,不符合司法权的内在规律,也严重制约着行政审判依据制度的运行。在快速转型的社会中,诸如利益群体、新闻舆论、信访群众等各种社会力量全方位对行政审判依据制度施加影响,其中既有正面的,积极的,也有负面的,消极的,需要对各方面的力量进行衡量。同时,自由与秩序作为法律体系的两大价值,应当贯穿于行政审判依据运行的全过程。第三,行政审判依据的发现。寻找依据是法律适用的基础环节。法律渊源确定了法官寻找法律依据的场所,设定了法官寻找活动的范围。我国宪法属于纲领性、原则性的政治性宪法,不属于可以直接司法适用的法律性宪法。法律是行政审判的唯一必然依据,是我国宪政体制的必然要求。行政法规和地方性法规在行政审判中的“依据”地位应当改变,确立参照制度。自治条例和单行条例除经最高权力机关批准外,在行政审判中同样处于参照地位。规章在行政审判中的参照地位应予保留。法律解释的地位依解释主体的不同而有区别,不可一概而论。“其他规范性文件”不属于我国“法”的范畴,在行政审判中应居于参考地位。法律原则、判例和习惯尽管未纳入我国法律渊源体系,但对审判依据存在“潜在”作用,可以在遵循一定规则的基础上,发挥它们的指导功能。第四,行政审判依据的选择。审查是选择的前提。我国目前突出立法机关审查、强调行政机关审查、限制司法机关审查的法律规范审查机制存在诸多问题,需要进行变革:建立立法、行政、司法复合审查,以司法审查为主的模式;对法规及以下法律规范进行司法审查;对法律规范只能进行合法(狭义法律)性审查,而不能进行合宪性审查;以间接审查为主,以直接审查为辅;对审查结果建立相应的确认制度。对法律规范冲突,法院可按照上位法优于下位法、特别法优于一般法、法律原则上不溯及既往等规则选择适用,不能确定如何适用的,应当按立法法确定的程序送请解释或裁决。第五,行政审判依据的适用。解释是适用的基础和核心。我国现行法律解释体制中,法院的空间狭小,地位尴尬,不符合法治的基本要求,应当确立法院的法律解释主体地位,承认法官法律解释权,扩大个案解释范围,同时建立判例制度,规制法律解释的效力。基于行政诉讼的特点,法律解释既要维护法制统一,又要尊重行政机关的解释,既要恪守司法最终原则,又要坚持有利于相对人的解释原则。坚持法律解释方法多元论,文义解释具有优先性,同时突出目的解释的功能,使得各种法律解释方法既相互独立,又相互解释和补充。不确定法律概念属于法律问题,法院在坚持全面审查原则的基础上,应承认在特定行政领域中的判断余地。法律规范援引既是对法律适用正当性的说明,也是裁判获得社会认可的重要途径。法律漏洞是不以人的主观意志为转移的存在,法官可以运用原则补充、类推适用、目的限缩或扩张等方法进行弥补,但必须在现有法律体系内进行,且必须说明理由。第六,行政审判依据的错误及救济。行政审判依据运行是一个理论与现实、制度与实践、主观与客观相互影响的过程。受人的有限理性和法律本身运行规律影响,在发现、选择和适用依据环节出现错误在所难免。对行政审判依据的这些错误,可以根据错误的性质和程度,采取更正、补正、撤销、重审等救济机制。依据错误并不意味着必然构成追究责任的“错案”,只有因故意违法或重大过失导致依据错误的情形,才可追究法官责任;注重加强对法官法律适用豁免权的保障。更多还原

【Abstract】 The grounds of administrative judgement are the base and provide the space for the administrative litigation. The law used by the people’s court is the criterion for the administrative judge judgement. This concerns not only the extent the protection given to the litigant but also the force which checks the administrative power. What’s more this is an important issue which concerns the national rule of law and constitutional system.This dissertation begins from the separation of powers in constitutionalism, added with the all kinds of elements which affect the practical administrative judges, explains the three links, which are the founding of ground of administrative judgement, the choice of ground of administrative judgement and the adoption of ground of administrative judgement. This dissertation aims to frame the proper ground of administrative judgement and set up its operation system in order to make it suit the constitutionalism. It also tries to explore the system of ground of administrative judgement with Chinese characteristic.First, the theoretical basis of ground of administrative judgement. The ground of administrative judgement is a mirror of rule of law in a country, which reflects the common principle of rule of law. Constitutional separation of powers is the logical beginning of the ground of administrative judgement. The ground of administrative judgement is the junction area of different national powers, which shows the interrelations of the powers in national constitutional system. The judicial independence and its degree control the independence of the ground of administrative judgement. The scientific and reasonable administrative judgement system is relied on the improvement of judicial power in the national power system. The activeness of judicial power is limited and can not go much further and surpass the American and English constitutionalism. On the contrary, the judicial power should mind its own function and use it better, and fulfill its function in its own area to keep and improve the justice. The scope of ground of administrative judgement is generally same with that of legal origins.Second, the practical ground of ground of administrative judgement. The ground of administrative judgement symbolizes the rule of law. In the practice there are many elements which deal with the founding, choosing and adopting. In dealing with the rule of law and politics, it is necessary to foster the Party’s position. In the court system there is administrative tendency in the upper and lower courts and judgers. This betrays the inner rule of judiciary and seriously blocks the function of ground of administrative judgement. In the transitional society, there are all kinds of social powers, such as interest group, media and mass, in different ways affect the ground of administrative judgement, among which there are positive ones as well as negative ones. So it is necessary to balance them. Meanwhile freedom and order, as the two values of the law, should be carried out in the whole process of ground of administrative judgement.Third, the founding of ground of administrative judgement. To found the ground is the basis of legal adoption. The area of legal ground and its scope is decided by the legal origins. Our constitution is a political one in principle and outline and can not be directly used in judiciary. Law is the only and necessary ground in administrative judgement, which is decided by our national constitutional system. The‘grounding’position of administrative law and local law should be changed and set up the reference institution. The autonomy regulation and single rule should in the reference, except for the ones granted by the Supreme Court. The legal explanation should be treated by its’author. The other regulation documents are not law and must be only in the reference position in administrative judgement. The legal principles, previous cases and customs is not in the legal system, but will have potential effect in the judge. So it can be kept and take its directive function but should obey certain rules.Forth, the choosing of ground of administrative judgement. Choosing is based on the reviewing. Currently, the problems are that the legislative review and administrative review are emphasized but the judicial review is weak. The solution is to set up the compound review of legislation, administration and judiciary, among which the judiciary is in central and decisive position. Additionally, the regulation and lower law should be reviewed by the judiciary. The direct review is subsidiary, while the indirect review is the main. The results of the reviewing should be sure and recognized. In dealing with the contradiction of the regulations, the court can solve it by the principle that the upper law is prior to the lower law, and special law is prior to the common law, and no tracing the previous ones. As for the certainty, it should be submitted to be explained and judged, which should follow the legislative law.Fifth, the adopting of the ground of administrative judgement. The explanation is the base and core of the adoption. In our current legal explanation system, the position of court is not high enough and can not meet the requirement of rule of law. So it is necessary to enforce the central position in the legal explanation, recognize the lawyer’s power in explanation, enlarge the case explanation, set up the case judgement institution, and regulate the effect of legal explanation. Based on the feature of administrative litigation, legal explanation should not only keep the integrity of rule by law but also respect the administrative explanation, not only foster the final principle of judiciary but also keep the favor of the litigant. To maintain the multiple methods in explanation and keep the priority of the text and focus on the purpose-oriented explanation will make the legal explanation in independence as well as having interrelation and remedying each other. Courts should make the review in whole way and admit the freedom in certain administrative area. The citation of the law shows the justification of the legal adoption and the important way to make the results recognized by the society. The legal neglects is objective and can be changed by subjective purpose. Judges can remedy it by using the principle added, similar adoption, purpose shrinking or enlarging. All these must be carried out in law and can surpported by the reasons.Sixth, the fault and remedy of the ground of administrative judgement. The operation of ground of administrative judgement is a complicated process of theory and reality, institution and practice, subjective and objective. Man’s rationality is limited and law has its own rule in operation, so it is unavoidable that there will be mistakes in finding, choosing and adopting the ground of judge. To deal with these faults, there are several remedy solutions which fit the faults in its nature and degree, such as correcting, compensating, cancelling and re-judging. The fault in the ground does not mean that the case is a mistake and the judger has to take the responsibility. The judger must be investigated on the condition that he breaks the law deliberately or the fault is grand. It is necessary to protect the judgers’immunization.更多还原