从行政诉讼到宪法诉讼——中国法治建设的瓶颈之治

From Administrative Suit to Constitutional Suit

法治乃现代社会之理想治理模式,诉讼乃法治实现的必然选择。在现行诉讼体制中,行政诉讼作为一种“权利对权力说‘不’的游戏”,标志着中国法治理念的本土生成;但由于其“先天缺陷”与“后天失调”所共同导致的运行不济,使得该机制在中国法治实践中未能彰显其应有价值。宪法诉讼作为域外法治实践的成功典范,因诸多因素在中国内地难以实证化,但其所蕴涵的民主、法治、人权与程序正义理念可为中国行政诉讼体制改革提供精神支撑。从行政诉讼到宪法诉讼,实现行政诉讼与宪法诉讼的内在契合与外在趋同,即为中国法治建设进程中的瓶颈之治。

The rule by law is the optimum mode of country＇ s administration, and litigation is best choice of ruling by law. In litigation system nowadays, administrative litigation as “the game of fight say ＇ no＇ to power”, indicate that the idea of ruling by law has been located in China. But that system couldn＇ t work so effectively as proposed because of some innate defects and acquired flaws. Constitutional litigation that is the model of practice ruling by law in western country also couldn＇ t establish in China for some reasons. However, the spirit contained in constitutional litigation, such as democracy, the rule by law, human fights protection and due process, could guide the innovation of Chinese administrative litigation system. From administrative litigation to constitutional litigation, realizing the outer accordance and inner agreements, is the key to government by law construction of China.