论我国不服行政裁决民事争议司法审查模式的选择

Study on the Choice of Judicial Review Mode of Civil Dispute on Disagree on Administrative Adjudication in China

我国法律对当事人不服行政机关裁决民事争议提起诉讼适用何种司法审查模式并不明确。传统行政法学理论认为,行政裁决属于行政权,在司法实践中长期适用行政诉讼审查模式,导致严重的诉讼解决纠纷功能失灵问题。新《行政诉讼法》规定该情形适用行政诉讼可以"一并审理民事争议"的模式并不具有可操作性,亦不利于纠纷的有效解决。笔者认为,从诉讼解决纠纷的规律来看,行政机关裁决民事争议属于委任司法性质的先行处理程序,不服行政裁决提起诉讼适用民事诉讼的审查模式,才能高效便捷地解决民事争议。

China’s law is not clear on what kind of judicial review model should apply to the litigation on civil dispute on the parties’ disagree on administrative adjudication. The traditional administrative law theory holds that the administrative adjudication belongs to the executive power, and the long-term application of the administrative litigation examination mode in the judicial practice leads to the serous functional failure in solving the dispute through litigation. The new Administrative Procedure Law provides that the circumstance which is applicable to the model that administrative litigation can “hear the civil disputes altogether”, is neither operational nor conducive to the effective settlement of disputes. The author believes that from the law of disputes resolved through litigation, the civil disputes resolved through administrative adjudication belong to the superior judicial procedure, litigation on disagree on administrative adjudication is applicable to the review mode of civil litigation. Only by doing so, can civil disputes be resolved efficiently and easily.