行政撤销决定之再撤销研究——基于行政活动合法性与稳定性的平衡

On the Re-withdrawal of Withdrawal of Administrative Acts——Based on the Balance Between Legality and Stability of Administrative Activities

撤销决定若存在违法情形,即可能被撤销。根据违法的撤销决定是对合法的原行政行为作出、还是对违法的原行政行为作出,可分两大类情形进行讨论,进而得出对应的撤销规则。将以上撤销规则提炼后,可以得出对撤销决定进行撤销时应适用的"两层次"基础规则:首先,审视原行政行为所确定的法律状态是否合法,若合法,迳行撤销撤销决定即可,若违法,则再审视撤销决定是授益性的还是负担性的,进而对其适用授益性行政行为的撤销规则或负担性行政行为的撤销规则。

If a withdrawal of an administrative act is illegal, it should be withdrawn again. There are two situations to apply different rules accordingly based on whether the withdrawal is made to a previously legal administrative act or to a previously illegal administrative act. After concluding the rules above, we may come up with a ＂two-stage＂ rule when to re-withdraw a withdrawal. Firstly, determine whether the previous administrative act is legal or not. If it is legal, the withdrawal should be re-withdrawn directly. Secondly, if the previous administrative act is illegal, it should be determined then whether it is beneficial or detrimental. Different rules concerning beneficial and detrimental administrative acts should be applied to certain situations.