论违法行政行为的私力救济及其应对

On the self-help remedy to illegal administrative act and its countermeasures

是否赋予行政相对方对违法行政行为"拒绝"的权利,一度为学界所关注。而现实生活中,行政相对方对违法行政行为的"拒绝"并非鲜见。相对方对违法行政行为的"拒绝"体现公民救济权利的另一种形态——私力救济。私力救济长期被忽视,并处于法治边缘。对违法行政行为中出现的私力救济,予以否定或回避,都无法解决问题,甚至会激化矛盾。只有分析私力救济的成因,认识其困境,适时应对才是正确的方法。

Whether to give administration opposite party the right to refuse an illegal administrative act or not draws attention of the academic circle. But in actual life, the phenomenon that administration opposite party refuses illegal administrative act is common. The phenomenon that administration opposite party refuses illegal administrative act embodies another form of citizen＇s right protection, that is, self - help remedy. Self - help remedy, which is always in the edge of rule of law, has been neglected. Negating or eluding the self - help remedy in illegal administrative act cant solve problem, and even sharpen the contradiction. We think that only by analyzing the causes for self- help remedy and realizing the dilemma can we find the solution to it.