行政诉讼给付判决的构造与功能
黄锴行政诉讼给付判决的构造与功能
Structure and Function of Prestation Judgment in Administrative Litigation
期刊名称：《法学研究》
期刊年份：
作者：黄锴
单位：浙江工业大学法学院
中文关键词：prestation judgment; provision obligations; substantive judgment; dispute settlement
英文关键词：prestation judgment; provision obligations; substantive judgment; dispute settlement
中文摘要：
司法实践中存在对给付判决作扩张解释的现象，这将导致给付判决与其他判决类型在适用范围上发生重叠，致使新增给付判决的立法目的落空。行政诉讼法“监督行政—纠纷解决”的立法目的，塑造了“低强度审查模式—高强度审查模式”的司法审查强度区间，要求法院对程序性裁判与实体性裁判作出区分。履行判决原则上只能是程序性裁判。给付判决的制度功能在于确立实体性裁判的裁判方式，弥补履行判决在功能上的不足。现阶段，给付判决尚不能发挥“多用途武器”之功能，其适用空间应限于法律规范规定的给付义务、给付行政范畴内的给付义务、以金钱或财产为内容的给付义务。
英文摘要：
Recently there has been a trend in judicial practice towards amplified interpretation of prestation judgment, which could lead to an overlap of application between prestation judgment and other similar judgments and prevent the full realization of the legislative purpose of the new judgment system established by the revised Administrative Litigation Law. The dual purposes of Administrative Litigation Law, expressed as “overseeing administration-dispute settlement”, have led to a judicial review intensity system with different intensity models of judicial review, namely “low intensity review model-high intensity review model”. As a result, courts should distinguish procedural judgments from substantive judgments. In principle, enforcement judgment can only be procedural judgment, while prestation judgment has the system function of establishing a model of substantive judgment aimed at making up for the deficiencies of enforcement judgment. At the present stage, prestation judgment is still unable to fully realize the function of “multi-purpose weapon” envisaged by many scholars and judges and its applicable situation should be limited to special areas meeting the following three conditions at the same time, that is, the obligation is provided by laws and regulations, the obligation is within the scope of supply administration, and the obligation takes money or property as its content.
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