行政指导司法救济探析

The Judicial Relief of Administrative Guidance

目前我国尚未有专门的法律对行政指导进行规制。实践中,行政指导造成相对人权益受损的情形实际存在,然而行政诉讼法却受传统理论的影响而未将其纳入司法审查。行政指导虽然不产生直接法律效果,但往往对当事人产生事实上的强制效果,因而应肯定其可诉性。对行政指导的审查标准既有与一般行政行为共同之处,亦有其特殊性,因行政指导而权益受损的相对人应有权请求赔偿和补偿。

At present our country has not have special law regulation on administrative guidance. In practice, administrative guid- ance damages rights and interests of the other party~ existence. Administrative procedure law, however, affects by traditional the- ory and does not be included in the judicial review. Although administrative guidance does not produce direct legal effect, howev- er, tend to produce in fact force effects on the parties, and therefore it should be sure its actionable. Review of administrative guidance standards both in common with general administrative behavior, also has its particularity, the rights and interests is damaged as a result of administrative guidance and compensate the other party shall have the right to request comnensation.