章士钊的行政裁判观探析

发布时间：2018-06-04 17:28

本文选题：行政裁判制度 + 自由　；参考：《西南政法大学》2011年硕士论文

【摘要】：章士钊是中国近代著名的政治活动家、学者和律师。他早年弃学救国只身参加革命,后因被捕入狱,随即流亡海外,求学英国。民国初期,章士钊留学归国后任《民立报》主编,后又创办《独立周报》、《甲寅》月刊等刊物,宣传民主宪政思想。清末民初之际,国内有关行政裁判制度的讨论随着执政者的立法活动而愈演愈烈。当是时,国人大都向往日本、法德之政治法律制度,欲效仿之,主流的行政裁判观认为,应效仿法国,设立独立的行政裁判机关,专司行政诉讼案件。接受英国法律思想的章士钊却持截然相反的观点,他主张将行政裁判归于普通司法机关管辖,不另设单独的行政裁判机关,同时他也反对设立专门规范行政机关同普通民众之间关系的行政法典。章士钊认为法国行政制度的产生和存在既是因为其对于三权分立思想的误读,也是因为认为政府官吏拥有特权的思想的存在,还有其特殊的历史、政治因素。法之行政裁判制度,是对人民合法权利受到侵害时寻求普通法院救济之自由权的侵害,是对法律之平等原则的侵害,是中国建立平等自由之法制国家的严重阻碍。章士钊将行政法按所适用范围分为两种,一种是调节官吏与官吏之间关系的行政法,他称之“一类之法”;另一类是调节官吏与人民之间关系的行政法,也就是章士钊所论及的对象,暂且称之为“官民之法规”。章士钊认为“一类之法”即存在于大陆法系也存在于英美法系,是法律体系中不可或缺的一类法律。而所谓调节官吏与人民之间关系的行政法,则是“特权之法”,“特权之法”的存在之基础在于两点,一为,认为政府与政府之官吏,作为国民的代表,享有特殊权力,将政府、政府官吏特殊化。二为,法人所主张的“权利的分离”的原理。即行政权不应受到司法权之干涉。这两点决定了此类行政法将政府官吏与普通公民之间隔离出了一道鸿沟,官吏所享有的所谓特权是普通民众所不能享有的,当普通公民所有的宪法上的权利遇到官吏的特权,即不能得到保障和维护,要让步于官吏之特权。章士钊对这类行政法持否定态度,认为其“不当设”。否定了行政法存在的应然性,就使得法式的行政裁判观失去了存在之法律规章之基石。章士钊又从宪政理论之基本原则出发,从个人自由权利、司法平等思想和三权分立思想三个方面对法之行政裁判制度进行了非常彻底的驳斥。章士钊认为,行政裁判制度的存在使得官吏得以逃脱普通裁判机关的审判,是对公民通过普通司法裁判机关寻求救济的基本自由权利的侵犯,违反了宪法保障公民个人自由权利的基本原则。行政裁判制度对行政官吏的这种庇护实则是赋予了官吏一种特权,使得官吏同公民处于不平等的地位之中,这又是对司法平等原则的侵犯。而法之行政裁判制度存在所依赖的分权思想,其实是对英美“三权分立”思想的误读。究其根源,章士钊所坚持平等法律观和自由主义思想,正是章士钊反对法式行政裁判制度的最本质的理论原因。他深受英国自由主义思想之影响,十分注重对与个人自由权利的保护,坚持主张司法平等。他认为法国行政裁判制度所造成的行政机构和行政官吏的特权是对公民寻求司法保护的自由权利的侵犯,而这种特权的产生和存在必然会导致对司法平等的破坏。
[Abstract]:Zhang Shizhao was a famous political activist, a scholar and a lawyer in modern China. In his early years, he abandoned school to save the country and took part in the revolution. After being arrested, he was imprisoned, and then exiled overseas to study Britain. In the early period of the Republic of China, Zhang Shizhao returned to the country as the editor in chief of the Democratic newspaper, and then launched the independent weekly, the Jiyin and the monthly magazine to propagate the democratic and constitutional thought. The late Qing people. At the first time, the discussion of the administrative referee system in China became more and more intense with the legislative activities of the rulers. When it was, most of the people yearned for Japan, the political and legal system of France and Germany. The mainstream administrative judgment thought that it should imitate France, set up an independent administrative judicial organ, special administrative litigation case. Zhang Shizhao, who would like to hold the opposite point of view, advocated the administration of the administrative referee to the jurisdiction of the general judiciary, not a separate administrative judicial organ, and he also opposed the establishment of an administrative code to regulate the relationship between the administrative organs and the ordinary people.
Zhang Shizhao thinks that the emergence and existence of the French administrative system is not only because of its misreading of the separation of the three powers, but also because of the existence of the thought that the government officials have the privilege, and the special historical and political factors. The administrative referee system of law is the right to seek the free right of the general court relief when the people's legal rights and interests are infringed. Infringement is a violation of the principle of equality of law and a serious obstacle to China's establishment of an equal and free legal system.
Zhang Shizhao divides administrative law into two kinds according to the scope of application. One is the administrative law that regulates the relationship between officials and officials. He calls it "one kind of law"; the other is the administrative law that regulates the relations between officials and the people, that is, the object that Zhang Shizhao is referring to, and it is called "the law of the official and the people". Zhang Shizhao believes that "a kind of law" "It exists in the civil law system, which also exists in the Anglo American law system, which is an indispensable law in the legal system. The so-called administrative law that regulates the relations between officials and the people is the" law of privilege ", and the existence of" the law of privilege "is based on two points, one is that the government and government officials, as representatives of the national, enjoy special characteristics. Power, the government and government officials are special. Second, the principle of "separation of rights" advocated by the legal person. The regime should not be interfered with by the judicial power. These two points determine that such administrative law separate government officials from ordinary citizens, and the so-called privileges enjoyed by officials are not enjoyed by ordinary people. All the constitutional rights of ordinary citizens meet the privileges of officials, that is, they can not be guaranteed and maintained, and must concession to the privileges of officials. Zhang Shizhao has a negative attitude towards such administrative law and thinks that it is "unsuitable".
By denying the deserved nature of the existence of administrative law, Zhang Shizhao lost the cornerstone of the legal rules of existence. From the basic principles of constitutional theory, Zhang Shizhao refutes the administrative referee system of law thoroughly from three aspects of individual freedom right, judicial equality thought and the separation of three powers. Zhang Shizhao It is believed that the existence of the administrative referee system makes it possible for officials to escape the trial of the common referee's organs and to infringe on the basic free rights of citizens seeking relief through the general judicial referee organs, which violates the basic principle that the Constitution guarantees the free rights of the citizens. A kind of privilege, which makes officials and citizens in unequal status, is a violation of the principle of judicial equality, and the thought of decentralization depends on the administrative referee system of law, which is a misreading of the "separation of the three powers" in Britain and the United States.
At the root of this, Zhang Shizhao's view of equal law and liberalism is the most essential theoretical cause of Zhang Shizhao's opposition to the legal administrative referee system. He is deeply influenced by the British liberalism, pays great attention to the protection of the right to freedom of the individual and insists on the equality of the law. He thinks that the French administrative referee system is caused by him. The privileges of the administrative and administrative officials are the infringement of the free rights of citizens seeking judicial protection, and the emergence and existence of such privileges will inevitably lead to the destruction of judicial equality.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D909.2;D922.1

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