法理抑或政争:民国初年行政审判模式之争的“表”与“里”  

Legal Theory or Political Conflict:On Stage and Backstage of the Dispute over Administrative Litigation Models in the Early Republic of China

作　　者：胡译之 HU Yizhi

机构地区：[1]上海社会科学院法学研究所,上海200020

出　　处：《政治与法律》2025年第2期162-176,共15页Political Science and Law

基　　金：国家社会科学基金青年项目“平政院稀见文献整理与研究”(项目编号:21CFX059)的研究成果。

摘　　要：行政审判模式究竟应采一元制抑或二元制,曾在民国初年思想界及宪法起草者中引发长达十余年的争论。过往研究并未揭示出,在思想界大论战中,章士钊的一元制理论实则存在明显的逻辑漏洞,二元制的领军人物张东荪、汪叔贤却蹊跷地倒向一元制。在制宪辩论中,论争双方逻辑一致,结论则完全相反,却又都能持之有故、言之成理;且论者不惜以论代史、删削学说,可见双方虽表面上言必称法理,背后实则另有动因。学界成说以为,论争双方留学经历及党派,是决定其模式偏好的最主要因素,但事实上二者皆不足恃。行政审判模式之争的真相,实为时局变换下,各方对行政权抑制与伸张的角力;而历次制宪的行政审判模式变化不定背后,反映出制宪者的利益诉求和不同时空下的权力格局。In terms of the administrative litigation model,whether a unitary system or dual system should be adopted had caused a debate over a decade in intellectual community and drafters of the Constitution in early Republic of China.Previous research has failed to reveal that ZHANG Shizhao's theory on the unitary system actually contains significant logical flaws in the debate in intellectual community,but ZHANG Dongsun and WANG Shuxian,the leading fingers of the dual system,curiously shifted towards the unitary system.In the debates on the constitutional drafting,both sides employed the same logic and reached totally opposite conclusions,yet both were able to provide reasonable justification and present their arguments logically.Furthermore,the debaters did not hesitate to substitute argument for history and even to revise theories,suggesting that although both sides outwardly consistently referred to legal theories,there were in fact other underlying motivations at play.The established academic view holds that the experience of overseas study and party affiliations of the debaters were the primary factors determining their model preferences,however,in fact neither of them was reliable.The true reason for the dispute over the administrative litigation model was the struggle between parties over the restraint and expansion of administration power under the evolving political landscape,and the fluctuating changes of administrative adjudication model during successive constitutional drafts were indicative of the drafters'interests and the power dynamics of different times and contexts.

关 键 词：行政诉讼 行政法院 平政院 法律移植 

分 类 号：D929[政治法律—法学]