行政复议与行政诉讼的制度竞争

On the System Competition between Administrative Reconsideration and Administrative Litigation

行政复议与行政诉讼是解决行政争议、监督权力、保障权利的两条基本路径。两者既有共性又有差异,在运行过程中优势互补、功能并存,呈现出制度竞争的格局。由于理论认识和制度设计等方面的不足,两种行政监督救济制度所形成的良性竞争并未显现,反而趋于相互抵触、消解。立足现行法律规定,结合新制度经济学的制度竞争理论,以健全行政争议多元化解机制的国策目标为导向,对现有行政复议与行政诉讼的衔接模式提供一种制度经济学和规范法学的双重观察视角。两种制度的竞争要素包括纠纷解决主体、制度更新能力、法律服务产品。制度竞争的逻辑体现为共同性稀缺性的竞争目标、竞争应遵循共同规则、竞争并不排斥合作等三个方面。通过对行政复议制度的完善,可营造一种良性互动、开放合作的多元化行政争议制度的新格局。

Administrative reconsideration and administrative litigation are two basic ways to solve administrative disputes, supervise power and protect rights. The two have both commonalities and differences. In the process of operation, their advantages complement each other and their functions depend on each other, showing a kind of institutional competition. Due to the deficiency of theoretical understanding and system design, the benign competition formed by the two administrative supervision and relief systems did not appear, but tended to contradict and dissolve each other. Based on the existing legal provisions, combined with the system competition theory of new institutional economics, guided by the national policy goal of perfecting the diversified settlement mechanism of administrative disputes, this paper provides a dual observation perspective of institutional economics and legal norms on the existing convergence mode of administrative reconsideration and administrative litigation. The competitive elements of the two systems include the subject of dispute resolution, the ability to update the system and the legal service product. The logic of system competition is embodied in three aspects: the competition goal of common scarcity, the competition should follow the common rules, and the competition does not exclude cooperation. Through the improvement of the administrative reconsideration system, a new pattern of diversified administrative dispute resolution with benign interaction, open cooperation is created.