选择性执法中“不法平等”研究

发布时间：2018-05-07 00:33

本文选题：选择性执法 + 负担行政行为　；参考：《广西大学》2017年硕士论文

【摘要】：党的十八届四中全会审议通过《中共中央关于全面推进依法治国若干重大问题的决定》,指出“有法不依、执法不严、违法不究现象比较严重,执法体制权责脱节、多头执法、选择性执法现象仍然存在,执法司法不规范、不严格、不透明、不文明现象较为突出”。选择性执法被明确定性为需要坚决予以遏止清除的违法执法现象。其中,以负担行政行为为核心行为要素的选择性执法,是众多选择性执法现象中最独特的一类。这种选择性执法现象是唯一一种无法适用现行行政救济制度予以纠正的类型。行政法平等原则对这一现象的纠正在理论上被称作“不法平等”,由德国著名公法学者杜立希教授于1956年首次提出。这一现象之所以在明显违背平等原则的情形下无法适用一般救济,在于它超出了一般行政不作为的法权结构,从而无法契合行政救济规范对法益内容和形式的要求。但是,宪法基本权利理论和公法权利理论的发展为解决这一问题提供了解释框架,平等原则作为一项基本权具备了主观请求可能,民主主权理论在行政法中的不断深入使“法益”的规范意义发生变迁,行政救济制度必须应对权利日益成为法秩序本身的历史趋势,对“请求权、”“诉的利益”等理论进行重构。中国行政法要想解释、解决类似传统理论无法应对的困局,应当汲取基本权利理论和公法权利理论精神,大力推进去行政化,提升相对人在行政法律关系中的地位,进一步厘清行政法上个体利益与公共利益的关系,及时建立行政公益诉讼制度。这样,我们将不仅解决“不法平等”问题,更是在行政法治化道路上大步前行。
[Abstract]:The fourth Plenary session of the 18th CPC Central Committee deliberated and adopted the "decision of the CPC Central Committee on comprehensively promoting the ruling of the country according to Law," and pointed out that "there are laws that are not obeyed, laws are not strictly enforced, the phenomenon of lawbreaking is relatively serious, the power and responsibility of the law enforcement system is disjointed, and many people enforce the law." Selective law enforcement still exists, law enforcement is not standardized, strict, opaque, uncivilized phenomenon is more prominent. Selective law enforcement is clearly defined as an illegal law enforcement phenomenon that needs to be resolutely curbed. Among them, selective law enforcement, which takes the burden administrative behavior as the core behavior element, is the most unique kind of the many selective law enforcement phenomena. This selective law enforcement is the only type that can not be corrected by the current administrative relief system. The correction of this phenomenon by the principle of equality in administrative law is theoretically called "illegal equality", which was first proposed by Professor Doolich, a famous German public law scholar, in 1956. The reason why this phenomenon cannot be applied under the circumstance of obvious violation of the principle of equality lies in that it exceeds the legal right structure of general administrative omission and thus fails to meet the requirements of the administrative relief norm for the content and form of legal interests. However, the development of constitutional basic rights theory and public law rights theory provides an explanatory framework for solving this problem, and the principle of equality, as a basic right, has the possibility of subjective request. With the deepening of the theory of democratic sovereignty in the administrative law, the normative meaning of "legal interest" has changed. The administrative relief system must deal with the historical trend that the right has become the legal order itself. The theory of "interest of lawsuit" is reconstructed. If China's administrative law wants to explain and solve the dilemma that similar traditional theories cannot cope with, it should absorb the basic rights theory and the theory spirit of public law rights, vigorously push into the administration, and promote the relative person's position in the administrative legal relationship. Further clarify the relationship between individual interests and public interests in administrative law, and establish the administrative public interest litigation system in time. In this way, we will not only solve the problem of illegal equality, but also stride forward on the road of administrative rule of law.
【学位授予单位】：广西大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.1

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