诉讼类型、行政行为与法律关系

Types of Litigation, Administrative Act and Legal Relationship

行政行为既有作为措施的形式面向,更有作为规律的内容面向。行政行为的效力是针对行政行为的规律内容而言的,德国的分解性构成更有助于说明效力的界限。日本通说认为,撤销诉讼的诉讼标的是行政行为的违法性,这可分解为作为措施的行政行为的程序违法性与作为规律的行政行为内容的实体违法性,法院审查的是行政厅是否存在根据某程序作出某内容的行政处分的权限、原告有无获得正当程序的法地位与实体法上的权利义务。如此,撤销诉讼也可以被理解为关于行政行为规律的法律关系的诉讼。通过判决确认行政活动的违法性、或者私人的实体法和程序法地位,这可谓整个行政诉讼的最小公约数。可以将这种理解一般化为行政诉讼的双层构造,即实体法关系和程序法关系与保障其实现的法律制度和请求权。诉讼类型具有一定的开放性,法院负有确定诉讼类型的责任,而不能轻易以诉讼类型错误驳回诉讼。与行政行为的两个面向相对应,行政的首次判断权也有行为和判断过程两个层面。过去的首次判断权理论以行为为基准,抑制法院在行政行为之前作出判断。但重要的应是对行政行为要件的判断,判断过程层面的首次判断权应在行政程序和诉讼程序的联动中思考,以促进纠纷的迅速解决。

The administrative act has not only a formal aspect as a measure but also a content aspect as a law.The effectiveness of administrative acts is based on the regulatory content of administrative acts.The German theory of the composition of an administrative act is more helpful to illustrate the limits of its effectiveness.The Japanese general theory in this regard holds that the subject of the revocation of litigation is the illegality of the administrative act,which can be broken down into the procedural illegality of the administrative act as a measure and the substantive illegality of the administrative act as a law.The court examines whether the administrative agency has the authority to make an administrative sanction for a certain content according to a certain procedure and whether the plaintiff has obtained the legal status guaranteed by the procedural law and the legal rights and obligations specified by the substantive law.In this way,the revocation of litigation can also be understood as a litigation concerning the legal relationship of the law governing the administrative acts.Confirming the illegality of administrative activities or the status of private substantive law and procedural law through judgments can be regarded as the smallest common divisor of the entire administrative litigation.This understanding can be generalized into the two-layer structure of administrative litigation:namely,the relationship between the substantive law and the procedural law;and the legal system and claim rights that guarantee their realization.The type of litigation has a certain degree of openness,and the court is responsible for determining the type of litigation,and cannot easily dismiss the litigation as a mistaken type.Corresponding to the two aspects of administrative behavior,the power of first judgment in administration also has two levels:behavior and judgment process.In the past,the theory of the right to judge for the first time was based on behavior and inhibited the court from making judgments before administrative actions.But what is important should be the judgment of the elements of an administrative behavior.The first judgment right at the level of the judgment process should be considered in the linkage of administrative procedures and litigation procedures so as to promote a rapid settlement of disputes.