涉外行政诉讼中被忽视的对等原则——兼论我国行政诉讼法对等原则条款被虚置问题的解决

On the Neglected Principle of Reciprocity in Foreign-related Administrative Litigation——Also on the Solution to the Problem that theProvision on the Principle of Reciprocity in the Administrative Procedure Law of Our Country Is Not Actually Used

我国《行政诉讼法》"涉外行政诉讼"中的对等原则条款是被我国行政诉讼研究遗忘的角落。在我国涉外行政案件的审判中,对等原则条款并未得到有效适用,背离了设置对等原则的初衷。究其原因,不仅因为对等原则条款的相关概念没有完全厘清,更在于适用对等原则的操作层面存在多重阻碍。这些阻碍既有法官重"同等"而轻"对等"的办案倾向,也有外国法查明困难、对等适用标准难定等问题。要解决上述问题,除了在检讨涉外行政诉讼立法模式和实际效用的基础上进一步完善可供操作的配套规范以外,删去对等原则条款的做法可能更符合当前的域外立法趋势和涉外行政诉讼的司法实践。

The provision on the principle of reciprocity in "Foreign-related Administrative Litigation" of Administrative Procedural Law of China has not been fully discussed for a long time. In the trial of foreign-related Administrative Cases in China, the provision on the principle of reciprocity have not been effectively applied, which deviates from the original intention of setting up the principle of reciprocity. The reason lies not only in the fact that relevant concepts of the provision on the principle of reciprocity have not been fully clarified, but also in the fact that there are multiple obstacles to the application of the principle of reciprocity at the operational level, which include not only the tendency of judges to pay more attention to the principle of equality than the principle of reciprocity, but also difficulties inidentifying foreign laws and determining the criteria for the application of reciprocity. In order to solve the above problems, it is more in line with the current trend of foreign legislation and the judicial practice of foreign-related administrative litigation to delete the provisions of the principle of reciprocity, besides further improving the operational supporting norms on the basis of reviewing the legislative model and practical utility of foreign-related administrative procedural law.