行政诉讼中的履行判决

发布时间：2018-01-15 21:05

本文关键词：行政诉讼中的履行判决　出处：《郑州大学》2017年硕士论文　论文类型：学位论文

【摘要】：履行判决作为我国《行政诉讼法》规定的一种判决形式,对于保障行政相对人的合法权益有着举足轻重的作用。履行判决与履行之诉并非一一对应的关系,换言之,履行判决在行政诉讼中有独立的地位,不应简单地将履行判决理解为履行之诉对应的判决形式。对履行判决的定义应紧紧围绕法律规范中的履行判决与审判实务中的履行判决两个层面去把握。按照《行政诉讼法》及相关法律规范规定,履行判决是针对行政主体不作为违法而作出的判决形式,实践中不作为的表现形式主要为拒绝履行和拖延履行两种;在审判实中,履行判决常出现于信息公开、人身财产保护申请、毕业证书发放等案件中。履行判决与给付判决、重作判决等相似概念有着千丝万缕的联系,理清它们之间的关系是研究履行判决的必经之路。通说认为,给付判决的诉讼争议主要在于金钱等财产的给付,即行政主体给付具体行政行为以外的事实行为和财产适用给付判决。而重作判决属于广义上的履行判决,重作判决是履行判决的一种特殊形式。因为原告的诉讼请求不同,督促被告履行法定职责的行政诉讼在审判阶段导致了重作判决与履行判决的分流。规范履行判决的重点在于履行判决的适用条件与内容,只有满足了程序性条件与实体性条件,才能适用履行判决,程序性条件包括原告已向行政机关提出履行职责的申请、行政主体不作为已满履行期限,实体性条件是行政主体有履行法定职责的义务,且有不作为的事实以及行政主体履行职责有必要。关于履行判决的内容,学术界有两种观点,即原则判与具体判,两种观点分歧鲜明,原则判决说主张尊重行政主体的首次判断权,主张人民法院不能再履行判决中责令行政主体作出某种具体、特定的行政行为,而只能要求行政主体履行法定职责。具体判决说主张在司法审查程度上,将履行判决“一判到底”,不给行政主体以裁量空间。原则判决说利于保障行政相对人的合法权益,为行政相对人提供应有的救济途径,并兼顾权衡司法权与行政权,因此,原则判决说更为合理。在审判实务中,原则判决也是通常做法,原则判决代替具体判决更是大趋势。
[Abstract]:As a kind of judgment form stipulated in the Administrative procedure Law of our country, the fulfillment of judgment plays an important role in protecting the legitimate rights and interests of the administrative counterpart, and the relationship between the execution of judgment and the action of performance is not one-to-one corresponding. In other words, the execution of the judgment has an independent status in the administrative proceedings. Performance judgment should not simply be understood as the corresponding judgment form of performance action. The definition of performance judgment should be tightly defined from two levels: the performance judgment in the legal norms and the performance judgment in the trial practice. Administrative procedure Law and related legal norms. The execution of judgment is the form of judgment against the violation of the law of the administrative subject's omission. In practice, the forms of omission are mainly the refusal to perform and the delay to perform. In the trial practice, the execution of the judgment often appears in the information disclosure, the personal property protection application, the graduation certificate issuance and so on. The similar concepts such as the execution judgment and the payment judgment, the redelivery judgment and so on have the inextricable connection. To clarify the relationship between them is the only way to study the implementation of the judgment. The general view is that the dispute over payment of judgment mainly lies in the payment of property such as money. That is, the administrative subject pays the specific administrative acts other than the factual acts and property applicable to the payment of the judgment, and the judgment is a broad sense of the performance of the judgment. Redelivery is a special form of performance because the plaintiff's claim is different. The administrative litigation which urges the defendant to perform the legal duty in the trial stage leads to the diversion of the judgment and the execution of the judgment. The emphasis of the norm of the execution of the judgment lies in the applicable conditions and contents of the execution of the judgment. Only if the procedural and substantive conditions are satisfied, can the performance judgment be applied. The procedural conditions include that the plaintiff has filed an application to the administrative organ to perform his duties, and that the administrative subject has completed the period of performance. The substantive condition is that the administrative subject has the obligation to perform the legal duty and the fact that there is omission and it is necessary for the administrative subject to perform the duty. There are two points of view in academic circles about the content of fulfilling the judgment. That is, the principle of judgment and the specific judgment, the two views are distinct, the principle of judgment claims to respect the first judgment of the main administrative power, the people's court can no longer fulfill the judgment ordered the administrative subject to make a certain specific. The specific administrative act can only require the administrative subject to perform the legal duty. The concrete judgment says that in the degree of judicial review, it will fulfill the judgment "one judgment to the end". Not to give administrative subject discretion. The principle of judgment is conducive to the protection of the legitimate rights and interests of the administrative counterpart, for the administrative counterpart to provide due relief, and balance the judicial power and administrative power, therefore. The principle judgment is more reasonable. In the trial practice, the principle judgment is also the common practice, and the principle judgment replaces the concrete judgment is the big trend.
【学位授予单位】：郑州大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D925.3

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