论行政法上的连带责任

Joint and Several Liability in Administrative Law

《最高人民法院关于审理行政许可案件若干问题的规定》第13条在行政法上确立了一个新的连带责任类型,即行政主体和私人共同承担连带责任。行政法上的连带责任应从行政主体之间的连带责任拓宽到行政相对人之间的连带责任以及行政民事连带责任,应从行政许可与行政赔偿领域拓宽到行政处罚等其它领域。行政法上连带责任的实现有赖于建立或重构行政诉讼和行政赔偿诉讼第三人制度,建立行政案件与民事案件的合并审理机制。行政主体在承担责任后要向作为连带责任人的第三人追偿,则有赖于建立"官告民"的行政诉讼机制,否则只能通过民事诉讼机制去追偿。

A new type of joint and several liability is set up by the article 13 of the Regulations of the Supreme People＇s Court on Several Questions Concerning the Trying of Administrative License Cases, i.e. the joint and several liability commonly shared by the administrative subject and the private party. The joint and several liability in the administrative law should be broadened from merely that among administrative subjects to also that among the private parties as well as administrative-civil joint and several liability, and so should its application field, i.e. from administrative license and administrative compensation to administrative punishment and other fields. The realization of the above joint and several liability in the administrative law depends on the establishment or reconstruction of some new systems such as the third party system in administrative litigation and administrative compensation lawsuit, and the amalgamated adjudication of administrative lawsuit and civil lawsuit. Whether the administrative subjects can pursue recoupment from the third party after undertaking the responsibility depends on the establishment of related administrative litigation system of the administrative subject charging the private party. Otherwise, only civil litigation mechanism can be taken to realize the recoupment.