行政诉权行使的合理限度——诉权保障的逆向思考

On the Reasonable Limit of Exercising the Administrative Litigation Right : Reverse Thinking about Protection of the Right of Appeal

"保障当事人诉权"是司法改革中的基础环节和核心命题之一。在行政诉讼实践中主要有"问题导向型"和"理念贯彻型"两种正面推进思路,但一味正面推进势必会增加其矫枉过正的潜在风险。从反向角度探寻行政诉权行使的合理(最小)限度,借以明确诉权保障之推进场域,不失为一种全新思路。行政诉权行使限度以事物限度理论与权利限度理论为正当性来源,并以司法资源的有限性、司法解决行政纠纷能力的有限性以及司法的谦抑性为考量因素。在诉权层次理论付之阙如的当下,行政诉权行使的合理限度应当以现行的起诉方式、起诉条件为准,且当事人以言之有理为限,法院以形式比对、核对为度。至于行政滥诉等行为的风险防控,可由当事人签署具结书的形式得以实现。

＂ Protecting parties＇ litigation rights＂ is one of the basic links and core propositions in judicial reform. In the practice of administrative litigation, there are two types of positive thinking which are ＂problem - oriented＂ and ＂idea - implementation＂. However, blindly advan- cing is bound to increase the potential risk of overcorrection. It is a brand - new idea to look at the reasonable （minimum） limit of the exercise of administrative litigation right from the opposite angle to clarify the advancement of the protection of the right of action. The limit of exercise of administrative litigation rights is based on the theory of the things＇ limit and the theory of rights＇ limit, and is limited by some factors such as the limited nature of judicial resources, the limited ability of judicial resolution of administrative disputes, and the modest restraining of justice. At the present, the reasonable limit of exercising administrative litigation rights should be based on the current prosecution method and the conditions for prosecution, and the parties concerned should be justified by reason, and the courts should use formal comparisons and checkups as a measure. As for the risk prevention and control of administrative abuses and other acts, it can be achieved by the parties signing a declaration form.