日本行政诉讼救济范围之拓展--“行政处分性”之理论解析

The Extension of Remedy in Administrative Litigation of Japan——Theoretical Analysis to Administrative Disposable Nature

尽管日本在2004年修改《行政案件诉讼法》时没有对行政诉讼(抗告诉讼)的对象予以明确界定,但从修法前后最高法院的若干判例来看,却出现了行政诉讼的受案范围逐渐拓宽、国民可以以此获得司法救济的领域愈发扩展的趋势。然而,这种变化并不意味着对早期判例所确立的"基本公式"的否定。相反,它是在尊重判断定式的前提之下,通过不断尝试具体的法律构造解释才得以逐步实现的。而在这一演变过程当中,"行政处分性"理论,厥功至伟,发挥了相当大的作用。

The legislatures of Japan didn＇t identify clearly the objects of administrative litigation（counter appeal） when revising the＇Administrative Litigation Law＇ in 2004.But there are several trends appeared in administrative litigation of Japan which can be found from the former and later cases of the Supreme Court. The scope of accepting cases of administrative procedure is widening so that citizens are enabled to attain judicial remedy in more areas. However, this kind of change doesn＇t suggest that the ＇fundamental formula＇,established by former cases, was denied. On the contrary, it was gradually achieved through keeping trying interpreting law structure, under the precise of respecting the judgment formulation. In the process of evolution, the theory of ＂Administrative Disposable Nature＂ played a very important role.