行政消极应诉行为探析

A Probe on Administrative Negative Lawsuit of the Defendant

在《行政诉讼法》实施十五周年之际,反思行政诉讼中被告消极应诉的问题,对于进一步完善《行政诉讼法》,推进行政法治的进程,无疑具有重要的理论和实践意义。行政消极应诉是被告对原告诉权的否定,对法院审判权的藐视,对人大立法权的对抗和对社会公共意志的抵触。行政消极应诉在审前、审中、审后三个阶段的表现形式各不相同。缺失法律信仰,法律工具主义观念至上和行政权独尊致使司法审判权边沿化是行政消极应诉行为的两大起因。要有效防治行政消极应诉行为,必须倡导行政诉讼法治化的观念,完善行政诉讼立法,健全行政诉讼制度。

Reflecting the negative lawsuit of the defendant in administrative lawsuit has important theoretic and practical meanings to completing Administrative Procedure Law and promoting administration by law during 15 anniversary of Administrative Proocedure Law. Administrative negative lawsuit is the denial of the defendant to the accuser＇s lawsuit right, is the defying to the court＇s judgment right, is opposing to legislation right of People＇s congress Council and clashing to public purpose. It has different forms in former, course and later of the judgment. Beijing short of law belief and with legal instrumentalism the highest, be edge of judgment right by following alone administrative right, which are two reasons of it. We should advocate the idea of administrtive lawsuit by law, complete its legislation and system.