预防性行政诉讼  

Preventive Administrative Litigation

作　　者：解志勇[1] 

机构地区：[1]中国政法大学法学院

出　　处：《法学研究》2010年第4期172-180,共9页Chinese Journal of Law

基　　金：国家社会科学基金课题"行政诉讼调解制度的理论基础和制度建构研究"(08CFX018)的阶段性成果

摘　　要：现行行政诉讼法规定的事后救济型行政诉讼,常常无法排除或修复行政活动对原告造成的严重损害后果,导致原告合法权益得不到有效保护,直接威胁到行政诉讼救济的有效性和社会稳定与和谐。应尽快弥补这个法律缺失,建立以事前和事中救济为特征,旨在对抗威胁性行政行为和事实行为的预防性行政诉讼制度,真正实现权利有效保障。Administrative litigation provided by the current Administrative Procedural Law is of the nature of ex post facto. It is unable to exclude or restore the severe damage resulted from administrative activities and cannot protect the legal rights and interests of the counterparts effectively, which directly threatens the effectiveness of administrative remedies as well as the steadiness and harmony of the society. The loophole in legislation should be filled up by constructing the new preventive administrative litigation with the nature of ex ante remedy. The preventive administrative litigation conforms to the tenet, purpose and development discipline of administrative litigation system. It can protect the rights and interests of administrative counterparts timely and effectively, realize the ultimate thought and logic of law, and demonstrate the truth of rule of law. From the aspects of enforcement environment, experience accumulation and actual requirements, it is of great urgency for our country to construct the preventive administrative litigation institution and perfect the system of administrative litigations. There are solid theoretical foundations, unequivocal constitutional law grounds and mature experiences from other countries and areas for our country to construct the preventive administrative litigation institution. The substantial principles of human rights and administration by law, the procedural requirements of effective right protection and remedy and the principle of ultimate judgment by judicature, and other legal values and ethnics, constitute its theoretical foundations. According to our constitutional law, our country should respect and protect human rights, should protect the basic rights of citizens such as personal rights and property rights. And citizens can charge against the illegal or delinquent act of administrative organs and their staff. Our constitutional law also provides in several places the supervision upon administration. These all provide it with constitutional law grounds.

关 键 词：行政诉讼 预防性行政诉讼 权利保障 

分 类 号：D925.3[政治法律—诉讼法学]