行政机关重复行为司法应对的路径转换

Path Transformation of Judicial Response to Repeative Administrative Acts

行政机关重复行为是一个在实践中导致“循环诉讼”困境、理论上与既判力功能维护及撤销判决效力保障等紧密关联的重要问题。针对行政机关重复行为的司法应对,现行法仅明确规定“重为判决+强制措施”的应对路径,但通过对重复行为的性质认定,依判决重作时强制执行的应对路径亦有适用余地,二者为择一适用关系。不过因前一路径为司法解释所明确致使后一路径在实践中基本未被运用。通过对两种路径进行分析和比较发现,“重为判决+强制措施”应对路径存在难以保障公民权益、无法避免“循环诉讼”以及削弱乃至架空既判力功能等缺陷,在制度功能上亦具有可替代性,应当予以摈弃。而单一的强制执行应对路径,不仅与重复行为的性质更相适配,在保障公民合法权益的同时亦能避免“循环诉讼”的实践困境,而且还能有效维护既判力功能。另外,在前后两诉诉讼标的是否相同、撤销判决是否具有执行力等理论争点上,亦能做出合目的、合逻辑的解释,应将其确立为应对重复行为的唯一路径。

The repeative administrative act is an important problem which produces the difficult situation of“circular litigation”in practice and is theoretically closely related to the function maintenance of res judicata and the guarantee of revocation of judgment effect.As for the judicial response to repeative administrative acts,the current law clearly defines the regulation path of“rejudgement+coercive measures”.Meanwhile,through the identification of the nature of repeative administrative acts,there is also room for the application of compulsory execution when a new administrative act is made on the basis of a judgement.Either“rejudgement+coercive measures”or compulsory execution is applicable.However,the fact that the former path is clearly defined by judicial interpretation has led to the latter path being basically not adopted in practice.Through the analysis and comparison of the two paths,it is found that the path of“rejudgement+coercive measures”has defects such as difficulty in protecting citizens’rights and interests,inability to avoid“circular litigation”and weakening or even nullifying the function of res judicata.It also has fungibility in institutional functions and should be abandoned.The single regulation path of compulsory execution is not only better suited to the nature of repeative administrative acts,but also can avoid the dilemma of“circular litigation”while safeguarding the legitimate rights and interests of citizens and effectively maintaining the function of res judicata.Additionally,it can provide a logical explanation for theoretical disputes such as whether the subject matter of the two actions is the same and whether the judgement for rescinding has enforcement power.Therefore,it should be established as the only path for regulating repeative administrative acts.