对行政指导行为不属于行政诉讼受案范围之质疑

Query about Administration-related Leading Conducts is Excluded from the Limits of Accepting Administrative Lawsuits

行政指导行为在现代行政中广泛存在,在取得较好行政效果的同时,也存在大量的行政指导不当或错误从而造成行政相对人损害的情况,但理论与立法却将其排除在行政诉讼受案范围之外,从而使行政相对人在受到损害时得不到司法救济,明显违反公平、公正的法律原则和精神。本文从行政指导行为的属性及在实施过程中对行政相对人可能造成损害等三方面探讨了其被纳入到行政诉讼受案范围的理论依据、事实依据及归责依据。并从诉讼法的角度作了进一步的阐述,以期提供有益参考。

Administration-related leading conducts widely exist in modern administrations. While most of them lead to good results, some, however, end with harms done to persons whom they aim to lead. In Theory as well as in practice ofChina's contemporary legislature, they are excluded from the limits of acceptingadministration-related lawsuits. The results of such exclusions are that persons thus harmed are unable to receive judicial aid and that principles and spirits related to laws such as fairness and justice are obviously violated. Starting from the viewing angle of the procedural law and dealing with the attribute of administration-related leading conducts and possible harms they can do persons they aim to lead, the thesis explores theoretical bases, factual bases and responsibility-attributing bases of including administration-related leading conducts into the limits of administration-related lawsuits.