“有错必纠”的界限  

The Boundary of “Collecting Mistakes Whenever Discovered”

作　　者：章剑生[1] 

机构地区：[1]浙江大学光华法学院

出　　处：《中国法学》2013年第2期164-179,共16页China Legal Science

基　　金：浙江大学光华学者岗资助项目"中国行政法发展的进路--基于"个案--规范"理论框架所展开的解释"之阶段性成果

摘　　要：通过行政法学界20多年的共同努力,有关行政决定确定力和撤销规则的学理框架已经相对成熟。这个学理框架内容是,行政机关作出的行政决定产生实质确定力之后,如行政机关认为它有错误必须予以撤销的,应当遵循若干撤销规则,不能基于"有错必纠"原则而随意行使撤销权。但是,从最高人民法院相关的行政裁判、批复和答复的内容看,最高人民法院一直秉持"有错必纠"原则,并没有受到这一学理框架内容的明显影响,直到作为指导性案例的"焦案"在《最高人民法院公报》上公布,它才改变了原有所持的观点。通过"焦案"所确立的规则是,依法作出的行政决定一旦生效,其法律效力不仅及于行政相对人,也及于行政机关,不能随意被撤销。已经生效的行政决定如果随意被撤销,不利于社会秩序的恢复和稳定。从"焦案"之后地方各级人民法院作出的相关裁判看,作为指导性案例的"焦案"其参考效力并不明显,"有错必纠"原则仍然有着相当大的影响力。这可能与指导性案例欠缺可操作性、强势的成文法传统等原因有关。尽管如此,"焦案"所确立的撤销规则仍然具有它的价值,这种价值不仅显示出学理对实务的影响力,也体现了法治观念的进步。Due to the joint efforts made by the scholars of administrative law over the past two decades, theoretical frame on determination of administrative decision and revocation of rules has become more mature. The contents of this theoretical frame is that if any mistakes is found in an administrative act that has been es- tablished, the administrative organ should follow relevant rescinding rules rather than the principle of ＂collec- ting mistakes whenever discovered＂. However, according to administrative judgments and official replies and answers issued by the Supreme People＇s Court, it is clear that the Supreme People＇s Court insisted on the prin- ciple of ＂collecting mistakes whenever discovered＂ rather than was influenced by the theoretical frame men- tioned earlier. The Court does not alter its view until the case of Jiao Zhigang was published as a guiding case on the Supreme People＇s Court Gazette. According to the judgment of the case of Jiao Zhigang, once an admin- istrative act has been legally made and come into force, the administrative act cannot be withdrawn at will, it is binding not only on the affected person（ s）, but also on the administrative organ itself. However, the rele- vant judgments made by the courts at various levels show that the case of Jiao Zhigang has not been frequently referred to in the judgments, and the principle of ＂collecting mistakes whenever discovered＂ is still deeply rooted. It is possibly because the rules made in the case of of the theory on the decisions the guiding cases are lacking in practical value and statutory tradition. However, Jiao by Zhigang are still valuable, and its value has not only represented the impact the courts, but also acted as a sign of the development of the idea of rule of law.

关 键 词：行政决定确定力 行政决定撤销 有错必纠 指导性案例 

分 类 号：D922.1[政治法律—宪法学与行政法学]