不动产登记错误的行政判决方式——以欺诈导致登记错误的行政案件为中心

Administrative Judgment Method over Real Estate Registration Errors:Focus on Administrative Cases Where Fraud Leads to Registration Errors

因欺诈导致的登记错误,应采用何种行政判决方式?对此,行政诉讼实务有数种不同的立场:撤销判决;确认违法判决;驳回诉讼请求判决。但是,这几种立场都有问题。撤销判决、确认违法判决的适用违反了行政行为违法性判断基准时的教义,对于合法但错误的行政行为作出了违法评价。驳回诉讼请求判决的适用则未能实现对错误行政登记行为的纠正。基于现行法律规范,因申请人欺诈导致登记错误的,法律已经课予了行政机关更正义务,法院可以向行政诉讼当事人释明,通过课予义务诉讼的途径主张权利救济,适用课予义务判决。

What kind of administrative adjudication should be adopted in the case where registration errors are caused by fraud？ In this regard, administrative litigation practice has several different positions ： to revoke the verdict, to confirm the illegal verdict, to dismiss the claim of the verdict. However, there are problems with these positions. To revoke the verdict and to confirm the application of the illegal decision will violate the doctrine of judging illegality of administrative act and made an unlawful judgement of the lawful but wrong administrative act. The dismissal of the application of the judgment of the litigation fails to correct the wrong administrative registration. Based on current laws and regulations, in terms of the case where fraudulent registration of applicants causes registration errors, the law has already given administrative agencies the obligation to make corrections. The court can explain that the litigants in administrative litigation are seeking for the remedy of rights through the compulsory litigation which imposes ohligation, hence compulsory judgment which imposes obligation should be applied in the case in return.