复议机关共同被告案件的审判困境及其化解

The Judicial Dilemmas Faced by the Institution of the Organization for Administrative Review as A Co-Defendant and the Solution Path

新《行政诉讼法》规定行政复议机关维持原行政行为的,与原行政行为机关作共同被告,最高院《适用行政诉讼法解释》对该制度的司法实践作出了若干细化规定。但是,在该《解释》第六条重新界定了复议维持和复议改变范围的情况下,复议机关共同被告案件司法审查对象的确定、举证责任的承担以及司法裁判的作出等皆面临诸多理论困境和实践操作难题。本文在分析该制度实施中面临的司法审判困境基础上,提出若干想法与建议,希望对解决复议机关共同被告制度面临的审判困境有所助益。

The 'New Administrative Procedural Law' lays down the rules that if the organization for administrative review upholds the original administrative act, the organization for administrative review and the original administrative organization would be regarded as co-defendant. The 'Judicial Interpretation about the Application of Administrative Procedural Law' formulated by the Supreme People's court has set a series of detailed provisions. But the determination of the object of judicial review, the burden of proof and the making of judicial decisions are facing many theoretical dilemma and practical problems about the case of the organization for administrative review as a co-defendant in the Article 6 of the 'Interpretation' has redefinition the range of the administrative maintenance act and the administrative change act. This article has put forward some ideas and suggestions to give a hand for the solution of the judicial dilemma faced by the institution of the organization for administrative review as a co-defendant.