程序控权与程序性立法的控权指向检讨——以《行政诉讼法》立法目的为个案

Procedural Control of Administration and Orientation of Procedural Legislative Control of Power

就对权力的规制而言,一个合理分权的权力结构当是最为根本和富有实效的,然在这一根本性前提尚未具备且短期内难有实质性变化的境况下,程序对于控权的意义更应被特别强调,尤其在如《行政诉讼法》这样的程序性立法中。因为对权力的规制需要程序要件的满足;权力行使的过程性要求对其制约的程序性;程序特别是正当程序本身即为控权机制;程序制约的过程正当性是法治之德的核心;程序的牵制性有助于催发权力结构的合理变化。但遗憾的是,在如《行政诉讼法》这样的控权性质相当浓厚的程序性立法中,由立法目的所体现的对于权力刻意维护的立法指向却是需要深刻检讨的。

As to the control of power, a reasonable decentralized power structure may be the most fundamental and effective. But, when the fundamental premise has not been established or will not change in a short time, the significance of procedural control is especially important to such procedural legislation as Administrative Litigation Law. The control of power should meet the demands of procedure. The process of power practice demands the procedural restriction. Such procedure as due process itself is a power control mechanism. The legitimacy of procedural restrictive process is the kernel of rule by law. The procedural restriction is beneficial to promote the reasonable change of power structure. But regretfully, in such procedural legislation as Administrative Litigation Law, the legislative orientation of defending power should be deeply self - criticized.