论行政协议诉讼嵌入后的法秩序困境及其消解

On the Dilemma of Legal Order after the Embedding of Administrative Contract Litigation and Its Resolution

2019年12月最高人民法院发布《关于审理行政协议案件若干问题的规定》,这一司法解释意味着我国至此形成了较为详备的行政协议诉讼制度。不过,由于立法上坚持行政诉讼法的“民告官”制度定位,加上行政协议实体法尚未出台,且学界关于行政协议的界定尚存争议,最终形成的行政协议诉讼制度既存在体系融入之困,也有诸多适用之困。为化解这些法秩序困境,近期来看,应尽快推动行政协议实体法的出台,并适当调整行政诉讼法的相关条文;远期构想,应寄希望于行政诉讼类型化和双向性诉讼结构的创设。

In December 2019,the Supreme People’s Court issued the“Regulations on Many Issues Concerning the Trial of Administrative Contract Cases.”This judicial interpretation means that China has thus formed a more detailed administrative contract litigation system.However,because the legislation adheres to the orientation of the system of“civilian accusation”in the administrative procedure law,coupled with the fact that the substantive law of administrative contract has not yet been promulgated,and there are still disputes about the definition of administrative contract in academic circles,the final administrative agreement litigation system not only has difficulties in integrating the system,but also has a lot of difficulties in application.In order to resolve these dilemmas in the legal order,in the near future,we should formulate the substantive law on the administrative contract as soon as possible,and appropriately amend the administrative litigation law.In the long-term conception,we should place our hopes on categorizing administrative litigation and constructing a two-way litigation structure.