类型化视野下行政行为“适用法律、法规错误”的再认识

Rethinking of "Error of Law" of Administrative Actions:A Typological Analysis

行政行为"适用法律、法规错误"的内涵尚存学术争议,应采抽象概念抑或类型化的思维进行界定,仍有待研究。《最高人民法院公报》案件的实践运用显示,法官已经无意识地在采用类型化的思维方式,并将依据要素和解释要素作为判断的核心要素,而部分案件的归类问题则反映了抽象概念思维下的弊端。"适用错误"兼具实践依法行政原则及作为司法审查基准的双重功能,类型化的思维既可体现其独立内涵,亦未固化各撤销要件之间的界限,从而有助于整体把握"行政违法"概念和司法实践需求,进而实现其功能。在类型化视角下,应从对应性、合法性和完整性确立对"依据错误"的司法审查标准,而对"解释错误"的审查则需结合个案,并通过行政审判实践进行完善。

The reason why there is still academic disagreement on whether″error of law″is an independent element of the revocation of an administrative action is that scholars do not distinguish between″abstract concepts″and″typology″in their research methods.In terms of jurisprudence methodology,a complete legal system is composed of the″internal system″constituted of legal principles and the″external system″with the abstract concept as the core,and between them is the″type″which plays the role of″a connecting bridge″.The method of″abstract concept″ensures the high degree of accuracy and closeness of the concept by extracting elements of the adjustment objects individually and separately to maintain the stability of the legal system.However,this method cannot satisfy the diversity of meanings in life or legal contexts,because it is always in pursuit of universalization of concepts.Whereas the method of typology aims to grasp the overall characteristics of concepts,so it is able to regulate the adjustment objects specifically and integrally.In administrative litigations,revocation elements of administrative actions are defined by describing the illegal phenomenon,and therefore,revocation elements belong to typical types rather than abstract concepts since they are characterized by liquidity and inability to strictly define boundaries.There may be overlapping or logical non-periodic issues among various revocation elements from the perspective of typology,but typology helps to adjust the various illegal administrative actions in the administrative process,so as to realize the function of judicial review.″Error of law″belongs to administrative violation.TheGazetteoftheSupremePeople’s Courtshows that judges have unconsciously adopted the method of typology,and taken the″justification elements″and″interpretative elements″as core elements of judgment.However,the classification of some cases shows that it is necessary to construct reasonable types in theory.According to the basic elements of the legal application process,″factual illegality″and″legal illegality″belong to the″ideal type″of administrative illegality in the″pedigree″of administrative violations,while other forms of illegality are″mixed types″or″intermediate types″between″factual illegality″and″legal illegality″.″Error of law″is close to″legal illegality″and has its normative field.It is the concrete manifestation of the″justification error″in its form,and the″interpretation error″as its substantive feature is the commonness shared with other types of violations.In such a sense,the type of″error of law″reflects its independent connotation,but does not solidify the boundaries between the elements of revocation,therefore formes a complete and highly adaptable normative field,which can effectively adjust the various cases of″error of law″in judicial practice.At the same time,in order to avoid difficulties in judicial practice caused by the overlap of illegal types,core elements of administrative actions can be used as the benchmark,and″interpretation errors″at different levels can be classified corresponding to other illegal types.Those errors that cannot be classified can be included in″error of law″.From the perspective of typology,the judicial review criteria for the″justification error″should be established based on the principles of correspondence,legitimacy and completeness,while the review of the″interpretation error″should be combined with individual cases and should be improved through administrative trial practice.