“不依法给付行为”之判决适用研究——基于《行政诉讼法》第11条第1款第6项的展开

On the Judgments of Administrative Act not in Accordance with Law——Based on Item 6,Paragraph 1 of Article 11 of Administrative Litigation Law

我国《行政诉讼法》第11条第1款第6项是行政给付进入诉讼救济的规范基础,但是因其就给付形态的规定过于模糊,导致当事人救济中获得的判决形式不明。将"不依法给付行为"作动态解释,它可以分为"消极不依法之不给付、少给付行为"、"积极不依法之不给付、少给付行为"以及"不依法之完全给付行为",相应地分别对应履行判决、撤销判决和确认判决。

It is commonly accepted that item 6, paragraph 1 of article 11 in Administrative Liti- gation Law is the basis that administrative supply be heard in court. But it＇s so vague in law that it caused the judgments be vague, too. To define administrative act not in accordance with law in a dy- namic way, it could be divided into negatively inadequate supply, positively inadequate supply, and adequate supply not in accordance with law. Accordingly, we could use respond the judgment, ab- rogation of judgment, and confirming judgment.