论被告申请“先予执行”被诉行政行为

Discussion on the Application for the Advance Executionof Sued Administrative Action

行政诉讼立法目的不仅在于控制权力,也包括保护公共利益。合理利用"先予执行"被诉行政行为,可以较好地平衡权利与权力、私益与公益、公平与效率。该规则虽然在实践中存在诸多争议,但面对现实国情和行政强制执行制度的不完善,其仍然具有正当性。新行诉解释将之彻底废止,并不妥当,在今后行政诉讼立法时应考虑对其重新加以规定。同时,为保障行政相对人权益,须在立法时对该规则作更严格、更具体的限制。

The legislative intent of Administrative Litigation Law is to oversee the power and protect public interest.The rational utilization of the advance execution of sued administrative acion can make better balance between rights and power,personal interest and public interest,as well as justice and efficiency.Although this rule has remained in disputes since its beginning,it still possesses practical and legal legitimacy considering current national circumstances and incomplete administrative enforcement system.Thus,the abolishment of this rule by the newly published judicial interpretation in 2018 is improper to some extent,so that it ought to be put back in law in future only through the legislation form.Meanwhile,in order to better protect rights and interests of administrative counterpart,it must be limited more strictly and specifically.