论行政诉讼的再审事由——评新行政诉讼法再审相关条款

On the Retrial Reasons of Administrative Litigation:Comment on Relevant Provisions of New Administrative Procedure Law

对行政诉讼再审程序的启动要严格限制和把关,要以再审事由的有限性、明晰性为标准,以存在错误的严重性为依据,以维护法院生效裁判的既判力为前提,来设计再审事由的内容。我国新修改的行政诉讼法对再审事由的规定存在标准不一、表述不一致等形式上的问题,以及再审事由的模糊性、不确定性与错误程度不够严重等内容上的问题。目前,要在保持新行政诉讼法稳定实施的前提下,对其规定的再审事由进行解释性改造,使其成为维护裁判既判力和纠正某些严重错误的有效武器。

Administrative litigation retrial reasons are the standards of review to start the retrial procedure. The maintenance to res judicata is the premise when the retrial reasons are stipulated. In the meantime, the following principles should be insisted on. more severe errors in the court referee, the clear expression of retrial reasons and the close scope of retrial reasons. Based on the above standard, this paper analyzes the new administrative procedure law from two aspects. Firstly, the retrial reasons are analyzed from the form. This paper points out that the inconsistency statements about the retrial reasons in the new administrative procedural law among three main subjects, the parties, the court, and the procuratorate, are harmful. Secondly, the content of retrial reasons of the new administrative litigation is analyzed, especially the following six retrial reasons. Namely, the retrial reason for ＂refusing to register or rejecting pleadings because of the court＇s fault＂, the retrial reason for ＂new evidence enough to overthrow the original judgment or written order＂, the retrial reason for ＂the main evidence for ascertaining the facts by the original judgment or written order is not sufficient and not cross-examined or falsified＂, the retrial reason for ＂the laws and regulations are mistakenly used in the original judgment or written order＂, the retrial reason for ＂the litigation procedure in violation of laws may affect a fair trial＂, the retrial reason for conciliation statement. These reasons are too general and broad to accurately grasp in practice because of their lack of clarity, concreteness, and objectivity. As a result, the stability of legal relations affirmed by the court＇s efficient decision and judgment will be threatened, and the res judicata of the court judge will be severely affected, and the seriousness and authority＂ of law will be damaged in the end. And also, the system of two-tier appellate will be malfunctioned, and the limited judicial resources will be wasted, and the opposing party will be reduced to the endless litigation. On the basis of the above research and through absorbing and drawing lessons from foreign experience about the retrial reasons for administrative litigation and combining the characteristics of administrative litigation in China, this article puts forward the suggestions on the establishment of the retrial reasons for administrative litigation, as follows. In the premise of the stability of the new administrative procedure law, the explanatory amendment of the retrial reasons for new administrative procedure law should be done in order to eliminate the vagueness and uncertainty and to ensure that the retrial reasons he listed maneuverable and clearly, by way of judicial interpretation by the Supreme People＇s Court. On the basis of the maintenance of the res judicata, the standards should be the seriousness about the mistakes in the referee documents, the clarity of the statement, the limited scope, and the uniformity among the parties, court, procuratorate. At present, the research on retrial reasons for the administrative procedure law is much less than that of civil suit retrial reasons, especially on the retrial reasons for the new administrative procedure law. Therefore, this in-depth research on the retrial reasons for that law boasts high theoretical value and practical importance.