论建构行政诉讼被告确认规则的理论基础

On the Theoretical Basis of Establishment of Affirmation Rules about the Defendant in Administrative Litigation

“谁行为,谁被告”是对我国现行行政诉讼被告确认规则“谁主体,谁被告”的完善,是人权理念的提升、依法治国方略的实施、中国加入WTO等现实国情决定的。文章从规则的宪政基础、现实基础等方面来探讨行政诉讼被告确认规则的理论基础,进而论证“谁行为,谁被告”的行政诉讼被告确认规则的合理性。

To implement the rule of law and comply with the practices within WTO, it is necessary for China to change the principle of defendant identification in administrative litigation from ＂who is the administrative subject should be the defendant＂ to ＂who conducts the administrative action should be the defendant＂, which also represents a great step forward in our understanding of human rights. In the paper, the author first analyzes the theoretical basis for defendant identification in administrative litigation from costitutional, realistic and administrative perspectives and then further elaborates the rationality of the principle that ＂who conducts the administrative action should be the defendant＂.