行政审判中的规则阐明问题研究

Study on the Issue of Rule Clarification in Administrative Trial

规则阐明是司法活动的一项主要内容。法官在审理案件的过程中,解决一系列事实和法律问题,都遵循着一定的规则,发现和阐明这些规则,对提高案件质量、提升司法权威都具有十分积极的作用。行政审判有自身的特点,其纷繁的法律关系和复杂的行政管理活动,为行政法官进行规则阐明提供了广阔的空间,同时也提出了更高的要求。规则阐明是指法官对所要适用的规则进行解释,阐述其涵义,解释规则适用的情境、适用于本案的合理性,包括事实规则、法律规则、法理规则阐明。阐明基础有:行政法基本原则、行政行为构成、行政权与司法权关系、经验政策。阐明方法包括利益权衡、依法解释、区别与类推。中国应当构建现代司法规则阐明制度,完善裁判说理制度,设立规则阐明的激励机制,借鉴判例法制度合理因素,建立规则引用制度。

Clarifying rules is one of the primary tasks in judicial activities. In the process of dealing with cases, judges follow certain rules to settle a series of questions concerning facts and laws. To find out and clarify the rules is of great importance to the improvement of the case quality and increase of judicial authority. Administrative trial has its own character, and the complicated legal relation and the administrative management activities thereof have provided the judges with broad space in clarifying the rules. At the same time higher requirement must be met. Rule clarification means that judges explain and expound the connotation of the rules that are applied to the cases, and explain the context the rules are applied, and the reasonableness of the rules being applied in the case, including clarification of the rules of facts, the rules of law, the rules of jurisprudence. The basis of clarification are as follows： the basic principles of administrative law, the component of administrative acts, the relation between executive power and judicial power, and experience policy. The methods of clarification include balancing interests, doing interpretation according to law, discriminating and analogizing. China should build modem judicial rules clarification system, perfect the reasoning system in judgment, set up the incentive system of rule clarification, and build the system of introducing rules by the reasonable factors in case law system as reference.