行政撤诉之再诉禁止效力的构造与限度

The Construction and Limitation of the Re-litigation Prohibition Effect of Administrative Withdrawal

再诉禁止效力是我国行政诉讼撤诉所特有的效力,其本质是再诉之诉的利益的丧失。在监督行政的制度目标下,撤诉被定位为终结监督机制,其要求法院进行高强度的撤诉审查,通过审查撤诉的自愿性和合法性,预判再诉之诉的利益;经法院准许的撤诉,原则上皆属丧失诉的利益之情形,再诉禁止效力的适用应予肯认。随着行政诉讼的制度目标从以监督行政为中心转向以实质性解决行政争议为中心,撤诉的定位转换为协调和解机制,法院需对撤诉进行低强度审查;若继续全面肯认再诉禁止效力的适用,可能严重侵害当事人诉权。撤诉审查强度的调适,要求再诉禁止效力的适用从原则转为例外,法院应综合考量撤诉类型、撤诉理由、撤诉情形等因素判定再诉之诉的利益,限定再诉禁止效力的作用空间。

The effect of re-litigation prohibition is a unique effect of withdrawal of administrative litigation in China,the essence of which is the loss of interests of re-litigation.Under the institutional goal of supervising administration,withdrawal is positioned as a termination of the supervision mechanism,which requires the court to conduct a high-intensity review of withdrawal and to predict the interests of re-litigation by examining the voluntariness and legality of the withdrawal.In principle,withdrawal with the court's permission is the loss of interests of litigation,and the application of the effect of re-litigation prohibition should be recognized.With the institutional goal of administrative litigation shifting from centering on supervision to centering on substantive settlement of administrative disputes,withdrawal is transformed into a coordination and reconciliation mechanism,and courts are required to conduct low-intensity review of withdrawals.At this point,continuing to fully recognize the application of the effect of re-litigation prohibition could seriously infringe on the parties'rights to litigation.The adjustment of the intensity of withdrawal review requires that the application of the effect of re-litigation prohibition be shifted from a principle to an exception.Courts should limit the scope of the effect of re-litigation prohibition by comprehensively considering the types,reasons and circumstances of withdrawal and other factors to determine the interests of re-litigation.