免除抽象行政行为的“司法豁免权”——抽象行政行为的可诉性研究

Relieving the Abstract Administrative Act of "Judicial Right of Exemption": A Study of the Procedure of the Abstract Administrative Act

自1990年颁布实施以来,《行政诉讼法》对督促依法行政,维护行政相对人合法权益起到了巨大作用,但是其排除了对作为国家重要行政管理手段之一的抽象行政行为的审查,不能不说是行政诉讼立法的一大缺憾。这一禁区的存在使得抽象行政行为的实施得不到有效的司法监督,而现有的监督手段又过于薄弱,难以产生实质作用。针对这种状况,本文提出扩大人民法院受理行政案件的范围,将抽象行政行为纳入司法审查的构想,同时就抽象行政行为纳入行政诉讼受案范围后面临的问题作了分析并探讨解决方法。

Since the promulgation of the Administrative Procedural Law, it has played an enormous role in promoting administration with law and protecting the litigant's lawful rights. However, it has excluded the examination of abstract administrative act——one of the important devices for the nation's administrative management. It is a pity for the legality of the administrative procedure, which has brought about ineffective legal supervision of the abstract administrative act. Besides, the current supervision is weak and does not fully play its role. This paper suggests enlarging the scope of accepting the administrative cases for the people's courts and bringing the abstract administrative act into legal examination. It also analyzes the issues after the abstract administrative act is brought into the scope of administrative procedure. Finally this paper puts forward some countermeasures.