司法地缘化对独立行使审判权之影响——行政诉讼价值取向应实现与行政审判体制改革相契合的法治效果

Judicial Localization Impact on the Independence of Administrative Jurisdiction——The Value Orientation of Administrative Litigation Should Be Compatible with the Legal Effect of the Reform of Administrative Adjudication System

当下,受地缘化影响司法依然存在有法不依、执法不严、违法不究现象,并成为实现公正特别是行政诉讼公平正义的主要障碍。司法不能独立导致的后果是以行政意志为中心的立案难、审理难、求正难、执行难。实践证明,解决"四难"只靠修改行政诉讼法本身无法达到法治预期,还须启动与之相适应的司法体制改革抑或行政审判制度改革。因为,"四难"现象虽发生在法院内部但其症结却植根于权力外部,表现在体制结构的外部环境长期得不到有效地治理和改善的结果。权力可以使法律荡然无存,并形成凌驾于法律之上的法外特权,故此,中国法治建设的重心应当从立法向执法监督的制度构建上移转。

At present, affected by judicial localization, the phenomenon such as laws not being fully observed or enforced, and impunity still existed in the administration of justice, which became the main obstacle in jus- tice proceedings particularly in the administrative proceedings of justice. The consequence of judicial depen- dence is the difficulties in filing, trial, investigation, and enforcement with administrative will as the center. Practice has proved that the ＂four difficulties＂ cannot be solved only by modifying the Administrative Proce- dure Law itself, so the reform of the suitable judicial system or the administrative justice system must be taken. Although the phenomenon of ＂four difficulties＂ occurred within the court, it was rooted outside the power, which reflected the external environment of the institutional structure was lack of effective governance and im- provement in a long term. The power can make the law all gone, and form the privilege above the law. There- fore, the focus of the construction of rule of law in China should be built up from legislation to the law enforce- ment supervision system.