【作者】 曹达全；

【导师】 杨海坤；

【作者基本信息】 苏州大学 ， 宪法与行政法学， 2008， 博士

【摘要】 在理论领域,不仅各种理论观点对行政诉讼功能定位存在差异,而且不同国家公法理论对该问题讨论的侧重点也有所不同。而这些不同理论观点则是在不同的法治背景下展开。从总体上来说,这些理论主要集中于对行政诉讼价值目标、司法权在宪政体制中的地位以及行政诉讼合法性基础三个方面展开。如果实证考察各国行政诉讼制度将会发现,各国行政诉讼制度基本是处于功能不断变迁的历史发展过程之中。从总体上来说,行政诉讼制度发展的趋势基本是从相对独立走向逐步融入到宪政和行政法治的体系中来,并与其他公法制度一起共同分担完成社会任务。各国行政诉讼制度可以整合为功能迥异的三种基本历史类型:官僚型的行政诉讼制度、形式主义的行政诉讼制度和功能主义的行政诉讼制度。而且,这三种历史类型的行政诉讼制度是分别产生于不同的历史和宪政法治背景。我国行政诉讼制度与前文所述形式主义类型的行政诉讼制度具有相当类似的特征。《行政诉讼法》所确立的价值目标并没能在具体制度中得以落实。行政诉讼制度审查范围不仅因为对行政行为分类的形式化而相当狭小,而且没能充分考虑与其他公法审查机制之间的协调关系。行政诉讼的合法性基础也存在严重的形式主义倾向。而且表现为依附于立法权。笔者认为这与我国宪政和行政法治发展水平有关。到目前为止,不仅各国行政诉讼制度(基本表现为功能主义的行政诉讼类型)仍存在诸多还没能解决的问题,而且,各国行政诉讼制度还面临新的机遇与挑战。其中主要包括价值目标多元化所带来的法之间如何协调的难题、审查机制多元化给行政诉讼审查范围所带来的难题、法的形式多元化给行政诉讼合法性基础所带来的难题等。针对以上问题,笔者根据各国行政诉讼制度的实践,并在评析学界基本观点的基础上提出了以下基本观点:第一,任何将行政诉讼制度价值目标定位为单一的目标模式都有其不足之处,在价值目标多元化的情况下,行政诉讼制度只有类型化才能从根本上解决价值目标多元化所引发的价值冲突问题。第二,传统公法理论以分权、公正与效率价值目标冲突作为行政诉讼与内部审查机制关系处理的理论基础应当得以修正。法院完全可以通过在行政诉讼确立“穷尽行政救济原则”而通过加强对行政内部审查机智的监督的方式协调效率与公正价值目标之间的冲突。公共领域事务的复杂性性决定了应当灵活处理行政诉讼与民事诉讼审查范围,而这种关系的灵活处理还应当建立在各自独立品格培养的基础之上。若从维护宪法权威的角度去考虑,不仅应当赋予司法机关在行政诉讼中具有直接适用宪法的权力,而且建立相对独立于一般公法争议审查机制的宪法审查机制,以保障行政诉讼制度的权威。第三,行政诉讼合法性基础实际上是行政诉讼制度与其他公法制度之间互动关系的结果,行政诉讼制度不可能以任何一种单一的法的形式作为其合法性基础,行政诉讼合法性基础法的形式的多元化是必然趋势。我们应当处理好各种法之间的关系才是问题的关键。任何形式的法要获得认同都应当从培养自身的优良品质入手。在行政诉讼过程中也并不应该存在任何先验的具有法的效力的东西,否则将弱化行政诉讼制度的意义。另外,行政诉讼合法性基础还应当建立在实质法治的基础之上。在中国,丰富和完善行政诉讼审查原则体系也是必然要求。第四,要想行政诉讼制度功能得以充分发挥,还需要行政诉讼制自身制度的完善。若从规范司法自由裁量权和预防腐败角度考虑,尤其是要规范司法权行使过程。更多还原

【Abstract】 There are different points of view to the function of administrative litigation in different public law theories in western countries, in which it was discussed in different theoretical viewpoints and the various based on the different theories of the rule of law. Of course, there ere same themes concerned in the above-mentioned theories, which including the orientation of the goals of administrative litigation, the position of administrative litigation in the system of the whole public law systems , and the basis of the legitimacy of administrative litigation .If we empirically study the administrative litigation, we can find that the function of administrative litigation is ever-changing even in every countries. There is also the sign that the administrative litigation was gradually integrated into the system of the whole public law, the tasks of which is undertaken by all the public institutions, but not only the administrative litigation. If analyzed in accordance with the historical development, all the administrative litigation systems in different countries can be grouped into three different types: the bureaucratic administrative litigation, formalism administrative litigation and function administrative litigation. We can see that three of them come into being basically in a background of specific society and constitutionalism.In the eye of the orientation of the function of administrative litigation, we can come to the conclusion that China’s existing administrative litigation has a strong tendency of formalism. Specifically, although the value target is expressly provided in the China’s existing administrative litigation law , but the values is not be carried out from a practical system design. The scope of the review is not only narrow, but also disharmonious with other review mechanism. The basis of the legitimacy not only has a single form, but clings closely to the legislative power. It can be believed that the rule of law is slow when administrative litigation was promulgated. Not only some puzzlements is left unresolved so far, we can see that the administrative litigation are facing unprecedented opportunities and challenges worldwide, such as the problem how to mute the conflicting administrative proceedings value target of the administrative litigation,how to deal with the relations between the different review mechanism, how to coordinate the diversified forms of law, and so on As a result, the author brings forward a series of selfviewpoints according to the history experience of the vicissitude of the function of administrative litigation. The theories above is analyzed too here.Firstly, Theoretically, it has its shortcomings that administrative litigation position a single value target for the rule of law. As mutual conflicting administrative proceedings value target may not be unified in the same proceedings, it is will be an inevitable requirement to category specific value objectives of administrative litigation.Secondly, the scope of the review of administrative proceedings should be fully taken into account not only the nature of controversial cases, but also the other review mechanism. Traditional law theory which built the relationship between the administrative litigation system and the internal review mechanism of administrative proceedings from the perspective of decentralization, fairness of the value and conflicting efficiency goals lies deficiencies. It is suggested that the Court can ensure the realization the objectives of fair value through a variety of means, including strengthening the way of the supervision of the internal review of the working of the process mechanism to administrative proceedings. This can coordinate the conflicting between the fair value and the efficiency. Thus, In China the principle of "end of administrative relief" established in the administrative proceedings is not only the inevitable requirements of diversification of review mechanisms, but also the inevitable requirement which coordinate fair and efficient. Because of the Complexity issues in the "public law field", it is necessary to make some adjustments for the traditional system of the proceedings of law, and re-consider the division and coordination of the scope of the review civil and administrative, both of which should train independent quality for themselves. It is necessary to establish a higher level of the organs of the dispute settlement mechanisms of state power. For China, it should not only be given to the judge in administrative proceedings who hear the case directly based on the power of the Constitution, but also it is still necessary to establish a higher level of constitutional review mechanisms to ensure the executive of the judicial power.Thirdly, based on of the basic experience of functional changes of administrative proceedings, the author put forward the legitimacy of basis of administrative proceedings are the results of interaction between administrative litigation system and social background. Administrative proceedings based on the legitimacy of the system is not a single performance possible form of law; forms of various laws need to be constantly tested in practice. It is ture that any single form of the law has been unable to meet the needs of social development. Diversification of forms of law is inevitable. The basis of the legality of administrative proceedings should be founded not only giving full consideration of coordination in Legal environment, but also taking into account the social value of objective response. It is also the key issues to handle the relations between them. It is suggested that China should be further enriched and improved fundamental Principle System of administrative proceedings reviewFinally ,It is pointed out that it is necessary to improve the administrative litigation for its own. for administrative litigation system function being fully Played. On the discretion of the judicial norms and the prevention of corruption in the judiciary, the author put forward the basic viewpoint which need further standardize the process of the exercise of judicial power.更多还原