论瑕疵行政行为的效力问题
发布时间：2018-08-25 19:33
【摘要】：在实践中,由于社会的复杂,行政关系的复杂,这样那样的不规范的行政行为大量存在。除了传统意义上的行政违法和行政不当外就没有第三种可能吗?答案是否定的,瑕疵行政行为就是第三种可能。德国将瑕疵行政行为分为不正确的法律后果、不合目的的行政行为、一般违法的行政行为、比较严重的瑕疵和特别严重的瑕疵瑕疵行政行为五类。日本将违法的行政行为和不当的行政行为,都认为是瑕疵的行政行为。我国学界也没有一个统一的标准。无论是德国、日本,还是我国学者现在的一些观点都存在这样或那样的缺陷。瑕疵行政行为应属于一般性的违法行为,这种违法行为主要表现在程序或形式上存在瑕疵,该瑕疵并不一定无效或撤销,对于轻微的瑕疵可以通过补救的方式使该行为得以生效；对于重大明显的瑕疵,已经损害了行政相对人合法权益的,予以撤销或确认无效。瑕疵行政行为属于轻微的违法行为,其瑕疵主要表现在形式上或次要程序上的,这些瑕疵不足实质影响到行政行为的性质,因此瑕疵行政行为具有公定力,这样确保了法律关系的稳定。在有权机关做出权威判断之前,应该推定瑕疵行政行为有效。鉴于行政行为的效力有形式效力与实质效力之分,瑕疵行政行为的效力也可分成形式效力与实质效力。形式效力一种是严重且明显瑕疵将影响行政行为效力,另一种是不影响行政行为形式效力的瑕疵。严重且明显瑕疵行政行为是无效行政行为,事后经权威性判断可以确认行政行为无效。对于轻微瑕疵行政行为来说,补正制度可谓最优选择,但是,补正应有时间限制,应在行政诉讼开庭审理之前。行政行为的实质效力是在行政行为符合法的实质正当性原则的条件下所具有的法律效力。违背合法有效要件的瑕疵行政行为法律后果有两种表现：撤销瑕疵行政行为或者确认行政行为违法。其他瑕疵行政行为的实质效力应根据瑕疵的不同性质及程度,可对其采取补正、变更、更正的补救措施。我国现行的法律法规对瑕疵行政行为采取了更加严格的规定,只要行政行为存在瑕疵其结果要么撤销要么确认无效,并不得采取补正的救济途径存续其效力,尤其对于违背法律规定的程序性事项的瑕疵,这样的做法存在很大弊端,应借鉴国外好的经验和做法,如德国和台湾地区对瑕疵行政行为采取补正和转换的方式、日本采取治愈和转换的方式,逐步完善我国在认定瑕疵行政行为效力的法律法规。首先,在认定瑕疵行政行为效力时应遵守符合实际原则、合法性原则、比例原则、保障司法解决原则。在审查时,谨慎使用撤销,少用、慎用确认违法,依照正当程序的原则进行审查,对于轻微瑕疵应加以补正等方式。
[Abstract]:In practice, due to the complexity of society and administrative relations, such non-standard administrative behavior exists in large quantities. In addition to the traditional sense of the illegal administration and improper administration, there is no third possibility? The answer is no, defective administrative behavior is the third possibility. Germany divides defective administrative acts into five categories: incorrect legal consequences, suboptimal administrative acts, general illegal administrative acts, more serious defects and especially serious defective administrative acts. In Japan, illegal and improper administrative acts are regarded as defective administrative acts. Our country academic circle also does not have a unified standard. Whether it is Germany, Japan, or our scholars now have some ideas have one or another defects. A defective administrative act should be a general illegal act, which is mainly manifested in the defect of procedure or form, which is not necessarily invalid or revoked. Minor defects can be remedied to make the act effective; for significant and obvious defects that have damaged the legitimate rights and interests of the administrative counterpart shall be revoked or confirmed invalid. Defective administrative act is a minor illegal act, and its defects are mainly in form or secondary procedure. These defects affect the nature of administrative act in essence, so defective administrative act has a public power. This ensures the stability of legal relations. The defective administrative act should be presumed to be valid before the authority makes the authoritative judgment. In view of the fact that the validity of administrative act is divided into formal effect and substantive effect, the validity of defective administrative act can also be divided into formal effect and substantive effect. One is that serious and obvious defects will affect the effectiveness of administrative acts, the other is the defects that do not affect the formal effects of administrative acts. Serious and obviously defective administrative act is an invalid administrative act, which can be confirmed by authoritative judgment afterwards. For minor defective administrative acts, the system of correction is the best choice, but the correction should be limited in time, and should be heard before the administrative proceedings. The substantive effect of administrative act is the legal effect under the condition that administrative act conforms to the principle of substantive legitimacy of law. There are two kinds of legal consequences of defective administrative act that violate the legal and effective requirements: revocation of defective administrative act or confirmation of illegal administrative act. The substantial effect of other defective administrative acts should be corrected, modified and corrected according to the different nature and degree of defects. The current laws and regulations of our country have adopted more strict regulations on defective administrative act, so long as the result of administrative act is defective, its result is either revoked or confirmed to be invalid, and the remedy way of complement and correction is not allowed to survive its effect. Especially with regard to the defects of procedural matters in violation of the provisions of the law, such practices have great disadvantages. We should learn from good experience and practices from abroad, such as Germany and Taiwan adopting a way of correcting and transforming defective administrative acts. Japan adopts the method of cure and transformation, and gradually consummates the laws and regulations of our country in determining the validity of defective administrative act. First of all, we should abide by the principles of reality, legality, proportionality and judicial settlement in determining the effectiveness of defective administrative acts. In the examination, the methods of withdrawing, using less and using carefully to confirm the violation of law, to review according to the principle of due process, and to correct minor defects should be used carefully.
【学位授予单位】：湖南师范大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D922.11
本文编号：2203885
[Abstract]:In practice, due to the complexity of society and administrative relations, such non-standard administrative behavior exists in large quantities. In addition to the traditional sense of the illegal administration and improper administration, there is no third possibility? The answer is no, defective administrative behavior is the third possibility. Germany divides defective administrative acts into five categories: incorrect legal consequences, suboptimal administrative acts, general illegal administrative acts, more serious defects and especially serious defective administrative acts. In Japan, illegal and improper administrative acts are regarded as defective administrative acts. Our country academic circle also does not have a unified standard. Whether it is Germany, Japan, or our scholars now have some ideas have one or another defects. A defective administrative act should be a general illegal act, which is mainly manifested in the defect of procedure or form, which is not necessarily invalid or revoked. Minor defects can be remedied to make the act effective; for significant and obvious defects that have damaged the legitimate rights and interests of the administrative counterpart shall be revoked or confirmed invalid. Defective administrative act is a minor illegal act, and its defects are mainly in form or secondary procedure. These defects affect the nature of administrative act in essence, so defective administrative act has a public power. This ensures the stability of legal relations. The defective administrative act should be presumed to be valid before the authority makes the authoritative judgment. In view of the fact that the validity of administrative act is divided into formal effect and substantive effect, the validity of defective administrative act can also be divided into formal effect and substantive effect. One is that serious and obvious defects will affect the effectiveness of administrative acts, the other is the defects that do not affect the formal effects of administrative acts. Serious and obviously defective administrative act is an invalid administrative act, which can be confirmed by authoritative judgment afterwards. For minor defective administrative acts, the system of correction is the best choice, but the correction should be limited in time, and should be heard before the administrative proceedings. The substantive effect of administrative act is the legal effect under the condition that administrative act conforms to the principle of substantive legitimacy of law. There are two kinds of legal consequences of defective administrative act that violate the legal and effective requirements: revocation of defective administrative act or confirmation of illegal administrative act. The substantial effect of other defective administrative acts should be corrected, modified and corrected according to the different nature and degree of defects. The current laws and regulations of our country have adopted more strict regulations on defective administrative act, so long as the result of administrative act is defective, its result is either revoked or confirmed to be invalid, and the remedy way of complement and correction is not allowed to survive its effect. Especially with regard to the defects of procedural matters in violation of the provisions of the law, such practices have great disadvantages. We should learn from good experience and practices from abroad, such as Germany and Taiwan adopting a way of correcting and transforming defective administrative acts. Japan adopts the method of cure and transformation, and gradually consummates the laws and regulations of our country in determining the validity of defective administrative act. First of all, we should abide by the principles of reality, legality, proportionality and judicial settlement in determining the effectiveness of defective administrative acts. In the examination, the methods of withdrawing, using less and using carefully to confirm the violation of law, to review according to the principle of due process, and to correct minor defects should be used carefully.
【学位授予单位】：湖南师范大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D922.11
【参考文献】
相关期刊论文 前10条
1 朱秘颖;;浅析行政违法引起的行政行为效力问题[J];重庆科技学院学报(社会科学版);2011年23期
2 江必新;;法律行为效力制度的重构[J];法学;2013年04期
3 刘秀丽;;行政程序违法的司法审查[J];东南司法评论;2011年00期
4 章禾舟;;论合法行政行为之撤销——以行政诉讼为研究视角[J];法律适用;2014年02期
5 关保英;;不当具体行政行为的不当性分析[J];华东政法大学学报;2009年03期
6 张弘;郭胜鳌;;行政瑕疵行为辨析与补救[J];辽宁大学学报(哲学社会科学版);2007年02期
7 于冠雄;;论行政程序瑕疵的司法审查——以我国立法、司法和学理的矛盾与协调为视角[J];江苏广播电视大学学报;2012年04期
8 张世民;;浅谈行政程序违法案件的审判理念和思路[J];江西科技师范大学学报;2012年06期
9 黄全;;法治国视野下行政行为对司法机关的效力[J];河北法学;2014年03期
10 王艳艳;;质疑“程序轻微瑕疵不影响相对人合法权益”[J];山西省政法管理干部学院学报;2012年03期
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