土地征收决定不是终裁行为——以行政复议法第30条第2款为中心
熊樟林土地征收决定不是终裁行为——以行政复议法第30条第2款为中心
Land Acquisition Decision Is Not “Final Administrative Ruling”
期刊名称：《法学研究》
期刊年份：
作者：熊樟林
单位：东南大学法学院;南京师范大学中国法治现代化研究院
中文关键词：土地征收决定;行政机关最终裁决;行政诉讼
英文关键词：land acquisition decision;final administrative ruling;administrative litigation
中文摘要：
由于我国集体土地征收决定涉及过多的不稳定因素，因而,现行司法实践偏爱于借用行政复议法第30条第2款的法解释通道，将其认定为终裁行为，从而拒绝对其展开司法审查。这种立场非但获得了强势的判例支撑，也获得了最高人民法院司法答复的肯认。但是，将土地征收决定认定为终裁行为只是对行政复议法第30条第2款的类推解释，既与设立设定终裁行为的基本法则难以融通，也应当在修订后的行政诉讼法实施之后迅速加以撤除。从根本上来说，土地征收决定不可能是终裁行为。
英文摘要：
In China, although disputes over land acquisition is common in administrative litigation, courts are reluctant to carry out judicial review of such disputes because they think land acquisition decisions involve too many political factors and may cause social unrest. However, the Administrative Litigation Law requires courts to review most administrative disputes because they are closely related to citizens' property rights. So the judges need to find a formal legitimacy basis for their refusal to carry out judicial review of disputes over land acquisition decision. Our study shows that, in order to achieve this purpose, judges often treat land acquisition decisions as "final administrative ruling" on the basis of Article 30 (2) of the Administrative Reconsideration Law. Such a practice has not only been strongly supported by precedents, but also confirmed by the Official Reply of the Supreme People's Court on Issues concerning the Application of Article 30 Paragraph 2 of the Administrative Reconsideration Law. However, this author believes that this practice is based on an analogical interpretation of Article 30 paragraph 2 of the Administrative Reconsideration Law that seriously distorts the original purpose of the law and is not in conformity with the nature of "final administrative ruling". Therefore, it should be abandoned after the revision of Administrative Litigation Law. Actually, land acquisition decision is not and cannot be final administrative ruling. The opinion of the Supreme People's Court on this issue is incorrect.
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