我国行政复议与行政诉讼程序衔接之再思考

Reconsideration of the Procedural Links Between Administrative Reviews and Administrative Proceedings in China

受具体国情的影响,各国立法有关行政复议与行政诉讼程序衔接的设置存在较大差别,并在总体上呈现出三种各具特色的模式;同时,公民权利有效救济的基准、司法与行政比较优势的发挥以及司法最终原则的贯彻也是各国制度演进所表现出的共性规律。我国行政复议与行政诉讼程序衔接的设置缺乏统一标准,既无助于行政纠纷的及时化解和公民合法权益的有效维护,甚至还会引发行政权与司法权的相互侵蚀。应当在借鉴域外模式经验的基础上,逐步取消行政复议终局型、重新设定行政复议前置型、严格限定迳行起诉型并大力推行自由选择型。

In regard to the procedural links between administrative reviews and administrative proceedings,relevant legislations vary a great deal in different countries because of their specific conditions.Generally speaking,they take three modes,each of which has its own characteristics.Meanwhile,employing criteria of effectual remedies for those whose civil rights are infringed,comparing judicial procedures with administrative ones and using their strong points,and carrying out paramount judicial principles are all cared about in the countries that strive to improve their institutions.No uniform criteria of the procedural links between administrative reviews and administrative proceedings are set up in China, which is not conducive to solving administrative disputes timely or maintaining the legitimate rights and interests of citizens.Further,it can even lead to conflicts of administrative and judicial powers.With reference to foreign experiences,China should revoke the final say of administrative reviews,lay down a provision that a party should apply for an administrative review before bringing his case to the court,strictly restrain bringing a case to the court before administrative decisions,and advocate that a party may freely choose an administrative review or an administrative proceeding.