浅议行政诉讼中被告的确定

Identification of the Accused in the Legal Prosecution

在行政诉讼中,存在着如何正确确定行政诉讼被告的问题。传统的行政诉讼理论是以"行政主体"为标准来衡量行政诉讼被告的资格,确立的是"谁主体,谁被告"的基本原则。然而,随着社会的发展,行政诉讼关系越来越复杂,传统的理论已经不能适应这样的发展,遂有学者提出了"谁行为,谁被告"的观点。笔者认为,行政诉讼被告的确认应该由行政行为的性质来决定。

In the legal prosecution, there exists the problem of how to identify the accused. In the traditional legal prosecution, the identification of the accused is made according to the basic principle of the prosecutorial subject. However, with the social development, the legal prosecution becomes more complicated, which challenges the traditional theory. Thus, some scholars put forward the opinion that the identification of the accused should be made by the behaviors of parties involved. In my opinion, the identification of the accused should be based on the nature of prosecutorial behavior.