行政诉讼行政首长出庭应诉制度:司法政治学的视角

The System of the Chief Executive Official as Respondent in Administrative Lawsuits from a Judicial and Political Perspective

新《行政诉讼法》修订颁布之后,行政首长出庭应诉制度正式成为一项带有鲜明中国特色的司法运作机制。从制度变迁的角度来看,行政首长出庭应诉制度经历了一个从地方政策试验到中央立法吸纳的过程。从各地关于行政首长出庭应诉制度的政策文本出发,不难发现社会稳定压力与地方法制竞争的外部因素影响,而且行政首长出庭应诉制度的实践运作,也主要依赖于数字考核的指标控制而非行政法治的自我拘束。从中国行政诉讼模式变迁的大背景下观察,行政首长出庭应诉与行政诉讼协调和解、行政诉讼司法建议制度根源自相同的法理,均旨在实现纠纷的实质性化解,而不再将合法性判断视为行政诉讼的核心议题。

Upon the revision of the Administrative Procedure Law,the system that the chief executive official should appear as respondent in administrative lawsuits have become a formal judicial institution with Chinese characteristics. Form the institutional transition perspective,this system has evolved from experiments at local policy level to legislations at national level. Based on the analysis of policy texts from various local areas,it is quite obvious that external factors such as social stability pressure and local legislative competition have played a vital role. From the perspective of practice,this system is more relied on index control for digital appraisal than self- restraint out of ruling of administrative law. From the perspective of administrative litigation pattern evolution,the system of chief executive official as respondent in court is based on the same jurisprudence as of coordination and mediation as well as judicial suggestions in administrative lawsuits,which aim to substantially resolve disputes rather than focus on justifiability review.