论民国初年行政诉讼体制的确立

On the Establishment of Administrative Judge in the Early Days of the Republic of China

行政诉讼体制有以司法机关掌握行政审判权的司法审查体制以及以专门机关掌握行政审判权的行政裁判体制之分,其原因在于如何认识司法权与行政权的分立与制衡。民国初年法制建设过程受国外行政诉讼理论的传播,立法者的知识背景、自身利益等因素的影响,南京临时政府时期、国会制宪时期以及北洋政府统治初期均确立了各不相同的行政诉讼体制,呈现出自上而下的法制建设,制度的选择易受立法者自身偏好影响的特点。

Because of the differences in the comprehension of the separation of powers principle, there are two administrative judge systems in England and France. In the early days of the building of legal system in the Republic of China, for the factors such as foreign theory spreading in China, and the background of legislators and their political benefits, different kinds of administrative judge systems appeared in the early days of the Republic of China. This process indicates when the building of legal system was totally by the political leaders, the chosen and transplanting of foreign legal rules were easily affected by the legislator themselves.