不履行特定作为义务之行政行为及其司法审查

Administrative Action of Failure to Perform Particular Obligation and the Judicial Review

如果说当前提高行政机关执法水平的关键在于提高行政机关履行作为义务的能力,那么人民法院行政审判的重点也应关注司法权对不履行作为义务行为的审查。本文旨在行政审判实践对不履行法定职责审查认识的基础上,结合现阶段不作为理论研究之共识,提出不履行特定作为义务之行政行为的内涵、特征和构成要件,以促进行政诉讼法的完善。

At present,if enhancing the ability of the administrative organs performing obligation of act is considered as the key to improve administrative organs＇ enforcement level,then the courts＇ administration trial also should focus on judicial power＇s review of failure to perform obligation of act. The article,bases the theory on administration trial practice＇s knowledge of its review of failure to perform legal obligation, combines with the common consent of the present omission theory＇s research, is aimed to propose the connotation, characteristics, composing factors of administrative action of failure to perform particular obligation of act,and the review manners and trial types of the act,as well as the question how to handle the suit- bringing deadline of the case of failure to perform particular obligation of act,expects to promote the perfection of administrative litigation law.