主观公权利、行政诉权与保护规范理论——基于实体法的思考

Subjective Public Right, Administrative Litigation Right and Theory of Protection Norm--Reflection Based on Substantive Law

保护规范的纳入使我国行政诉权的判定回归至行政实体法,回归至实体法上主观公权利的有无。由此,行政诉权以个体在实体法上的主观公权利为准据,其范围和界限也由实体法上的主观公权利来框定,成为理解行政诉讼原告资格的全新视角。主观公权利和行政诉权各自历经复杂嬗变,而将二者紧密衔接的正是保护规范理论,它们三者之间的复杂关联所揭示的正是一种对于行政诉权的实体法思考方式。

The inclusion of protection norm makes the judgment of administrative litigation right return to the administrative substantive law and the existence of subjective public rights in the substantive law. Therefore, the administrative litigation right is based on the individual’s subjective public right, and its scope and boundary are also framed by the subjective public right in substantive law, which becomes a new perspective to understand the plaintiff’s qualification in administrative litigation. The subjective public right and administrative litigation right have gone through complex changes separately, and the two are closely linked by the Theory of Protection Norm. The complex relationship among the three reveals a way of thinking about the substantive law of administrative litigation right.