行政举报答复行为可诉性审查规则探析

Analysis of the Rules for the Actionability Review of Administrative Reporting Reply Behavior

目前,由于我国的举报制度散见于各个行政管理部门法当中,缺乏统一的上位法规范,行政举报答复行为的可诉性审查普遍存在举报的概念和范围界定不明确、行政举报答复行为性质认定不一、被诉行政行为混同的问题。因此,将举报答复行为分阶段区分为受理阶段的举报答复行为、处理阶段举报答复行为以及特殊阶段的举报答复行为,受理阶段的举报答复属于程序性答复具有独立程序价值,并对当事人权利义务产生直接影响具有可诉性。处理阶段仅涉及实体利益的举报答复有涉及自身利益与公共利益之分,公益性举报请求保护利益为反射利益,不具有可诉性。自益性举报通过判断其所依据的法律规范是否具有保护当事人个人利益的目的来判断可诉性。特殊阶段的行政奖励与答复行为的可诉性互相独立,有奖举报的存在不意味答复行为当然具有可诉性。

At present, reporting system scatters in administrative departments law and there is no unified superior law standardization. There are many problems in the review of actionability of administrative reporting reply, that is, the concept and scale of reporting are not definite, the nature of reporting reply behavior is identified differently and the accused administrative actions are confused. Therefore, it’s necessary to periodically divide reporting reply behavior into reporting reply behavior in acceptance period, handling period and special period. Reporting reply behavior in acceptance period is procedural, with independent procedural value and having direct impact on litigant’s rand obligations, and it’s actionable. In handling period, there are some reporting replies only involve entity interest which consists of public interest and individual interest. The interest applied by public welfare reporting is reflective interest, the reply behavior of which is not actionable. Self-benefiting reporting actionable or not is judged by whether the laws and regulations it replies aim at protecting litigant’s personal interest or not. In special period, administrative award and reply behavior are mutually independent, and the rewarded reporting can’t decide whether the reply behavior is actionable or not.