我国行政合同诉讼规则研究

发布时间：2018-08-22 14:31

【摘要】：行政合同是行政机关进行社会管理的方式之一,作为市场经济和民主发展的产物,它既能保证行政机关行政目标的实现,又能使行政相对人以更加民主的方式参与社会管理活动。行政合同的特殊功能使其得到了行政机关的广泛使用,同时也出现了大量的行政合同纠纷。但我国缺乏对行政合同制度的统一性法律规范,导致行政合同纠纷解决呈现出一定的乱象。在行政合同诉讼中,理论界和实务界长期以来对行政合同的性质无法达成统一意见,法院在审查该类案件时通常将行政合同认定为民事合同,从而适用民事法律规范;最高人民法院颁布的有关批复、指示等也更倾向于将行政合同归入民事诉讼受案范围,导致法院对行政合同案件的审查无法正确认识行政合同的特性并适用相应的审判规则,严重损害了行政相对人的合法权益和国家及社会公共利益。2015年实施的新《行政诉讼法》,首次以立法的形式明确将包括政府特许经营合同、土地房屋征收补偿合同等在内的行政合同纳入行政诉讼受案范围,解决了行政合同的性质归属问题。然而新行政诉讼法对行政合同只做了概括性的规定,法院在审理行政合同案件时,仍面临诸多问题,总的来说包括两个方面,一是行政合同的可诉性,即进入诉讼的行政合同种类不明确。二是行政合同司法审查规则不够具体,无法完全解决行政合同纠纷,主要表现为行政合同审查方式和法律适用规则有待明确、行政合同诉讼举证责任分配有失合理、行政机关的法律救济途径缺失等。针对行政合同诉讼面临的上述问题,本文在分析规范性文件、理论界研究状况的基础上,结合人民法院司法案例,对行政合同诉讼存在的上述问题提出了可行性较大的完善办法,一是对行政合同的可诉性进行分析,以列举的方式确定行政合同诉讼受案范围。二是完善相应的司法审查规则,即针对不同的审查内容适用不同的法律规范、重新分配当事人的举证责任以及确定行政机关的非诉行政执行程序救济途径。
[Abstract]:As a product of market economy and democratic development, administrative contract is one of the ways for administrative organs to carry out social management. It can not only guarantee the realization of administrative objectives of administrative organs, It also enables the administrative counterpart to participate in social management activities in a more democratic manner. The special function of the administrative contract makes it widely used by the administrative organ, at the same time, there are a lot of disputes in the administrative contract. However, the lack of unified legal norms on the system of administrative contracts leads to a certain disorder in the settlement of disputes in administrative contracts. In the administrative contract litigation, the theorists and the practical circles have been unable to reach a unified opinion on the nature of the administrative contract for a long time. The court usually regards the administrative contract as a civil contract when examining such cases, thus applying the civil legal norms; The relevant replies and instructions issued by the Supreme people's Court are also more inclined to include administrative contracts in the scope of civil litigation cases, resulting in the courts' examination of administrative contract cases being unable to correctly understand the characteristics of administrative contracts and applying the corresponding trial rules. It has seriously damaged the legitimate rights and interests of the administrative counterpart and the national and social public interests. The new Administrative Litigation Law, which was implemented in 2015, will explicitly include government franchise contracts in the form of legislation for the first time. The administrative contract, including the contract of expropriation and compensation of land and house, is included in the scope of the administrative lawsuit, and the nature of the administrative contract is solved. However, the new law of administrative procedure only provides for the general nature of administrative contract. The court still faces many problems when trying cases of administrative contract. In general, there are two aspects, one is the justiciability of administrative contract, Namely enter the administrative contract type of lawsuit is not clear. Second, the rules of judicial review of administrative contract are not specific enough to completely resolve the dispute of administrative contract. The main manifestation is that the mode of administrative contract review and the applicable rules of law need to be clarified, and the distribution of burden of proof in administrative contract litigation is unreasonable. The administrative organ's legal remedy way is missing and so on. In view of the above problems faced by the administrative contract litigation, this paper, on the basis of analyzing the normative documents and the research situation of the theoretical circle, combined with the judicial cases of the people's court, This paper puts forward some feasible and perfect methods for the above problems in administrative contract litigation. One is to analyze the actionable nature of administrative contract and to determine the scope of administrative contract litigation by enumeration. The second is to perfect the corresponding rules of judicial review, that is, to apply different legal norms to different contents of the review, to redistribute the burden of proof of the parties and to determine the remedy ways of the non-litigation administrative execution procedure of the administrative organs.
【学位授予单位】：上海师范大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D925.3

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