扩张,还是限缩?——行政附带赔偿诉讼适用范围之确定

Expansion or Restraint?——Confirmation of Administrative Litigation with Incidental Compensation Action Applicable Scope

确认制度与粗糙的规范导致了我国行政附带赔偿诉讼的滥用,后者又导致了诸如架空先行处理制度、滥用司法资源、错误判决赔偿等弊端。为此,我们不是应该扩展,而是应当严格限缩其适用范围。只有在作为主诉具有独立价值,可赔偿的损害是主诉所针对具体行政行为而起,且主诉确认了具体行政行为实体违法性时,附带赔偿诉讼才能成立。据此,人民法院面对不同的情形采取不同的方式来处理附带提起的赔偿诉讼,相关司法解释也应当予以修改。

In China, the confirmation system and rough norms lead to the abuse of the administrative litigation with incidental compensation action, which in turn leads to many disadvantages such as neglect of the administrative deal first system, abuse of judicial resources, wrong judgment compensation, etc. So, instead of expansion, restraint should be taken to its applicable scope, i.e. the incidental compensation action can only be applied when the following conditions are all satisfied, which are the chief administrative litigation being of independent value, the compensable damage being cause by the specific administrative behavior of the chief administrative litigation, and the specific administrative behavior being confirmed of substantial illegality by the chief administrative litigation. Accordingly, different ways should be taken by the people＇s court to deal with incidental compensation action based on different circumstances, and the relevant judicial interpretation should also be amended.