論行政規(guī)范性文件審查之訴的構(gòu)建
發(fā)布時間：2019-04-09 15:36
【摘要】：制定行政規(guī)范性文件的活動在實踐中大量存在,從加強和健全行政管理和行政法制看,有其合理性和必然性,行政機關(guān)制定的行政規(guī)范性文件在實踐中發(fā)揮著重要作用,成為我國法治政府建設(shè)的重要力量。它彌補了法律漏洞,適應(yīng)復(fù)雜多變的行政管理和現(xiàn)實生活需要;推動了行政機關(guān)依法行政,為行政管理提供不可或缺的重要依據(jù);調(diào)動了各級政府及其工作人員的積極性、主動性。只是行政規(guī)范性文件一旦出現(xiàn)違法或者不適當(dāng),其影響的范圍是廣泛的。這對政府的公信力是一種挑戰(zhàn)。目前,我國現(xiàn)行行政訴訟制度排除了對行政規(guī)范性文件的審查,這并不利于保護行政相對人的合法權(quán)益,亦與依法行政的宗旨及有權(quán)利即有救濟的法治理念相悖。筆者在分析了我國行政規(guī)范性文件監(jiān)督的現(xiàn)狀的基礎(chǔ)上,認(rèn)為有必要將行政規(guī)范性文件納入司法審查的范圍,構(gòu)建具有中國特色的規(guī)范性文件審查之訴。本文共分為六個部分:第一部分首先以一個典型的案例入手,指出行政規(guī)范性文件違法給行政相對人造成的傷害,我國司法在處理此類案件的常規(guī)做法。旨在引出問題來解決這種尷尬的司法境地。其次,總結(jié)關(guān)于行政規(guī)范性文件審查之訴的國內(nèi)外研究現(xiàn)狀,研究意義及研究方法。第二部分主要介紹行政規(guī)范性文件審查之訴的基本情況,其中包括行政規(guī)范性文件概念界定、特征及效力。我國目前對行政規(guī)范性文件的監(jiān)督現(xiàn)狀及這幾種監(jiān)督方式存在的缺陷。在我國構(gòu)建行政規(guī)范性文件審查之訴的必要性及可行性。第三部分主要是對我國構(gòu)建行政規(guī)范性文件審查之訴的理論基礎(chǔ)進行分析。從四個方面對我國構(gòu)建行政規(guī)范性文件審查之訴的可行性進行探討。即:理論基礎(chǔ),組織基礎(chǔ),制度基礎(chǔ)和社會基礎(chǔ)。第四部分主要是對域外行政規(guī)范性文件審查之訴的研究,通過比較研究提出構(gòu)建我國行政規(guī)范性文件審查之訴的模式。第五部分主要是對我國規(guī)范性文件審查之訴的構(gòu)建的闡述,主要是從立法模式選擇入手,提出構(gòu)建我國規(guī)范性文件訴訟的具體制度設(shè)計,從原告資格、舉證責(zé)任、審查主體、管轄主體、審查依據(jù)、審理方式、判決類型等幾方面著手,構(gòu)建具有中國特色的規(guī)范性文件審查之訴。第六部分是結(jié)論,對文章主要觀點進行歸納。
[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.
【學(xué)位授予單位】：電子科技大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2014
【分類號】：D922.1
，
本文編號：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.
【學(xué)位授予單位】：電子科技大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2014
【分類號】：D922.1
，
本文編號：2455301
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