行政诉讼类型制度的功能
刘飞行政诉讼类型制度的功能
Functions of the Categorized Administrative Litigation System
期刊名称：《法学研究》
期刊年份：
作者：刘飞
单位：中国政法大学中欧法学院
中文关键词：行政诉讼类型 行政诉讼受案范围 诉权保护
英文关键词：categorized administrative litigation system;scope of jurisdiction in administrative litigation;protection of litigation right
中文摘要：
行政诉讼中的诉讼类型如何设置，与行政诉讼受案范围如何确定之间并无直接关联，因此诉讼类型制度不具有拓展受案范围的功能。从完善诉权保护的角度来说，虽然可以考虑引入无效性确认之诉、继续确认之诉与预防性诉讼三种诉讼类型，但不可高估其意义。我国现行行政诉讼制度中系以非明文规定方式建立了类型制度。是否明文规定诉讼类型仅具有形式意义上的区别，不会对行政诉讼制度的具体构造形成实质影响。改良行政诉讼制度应着力推进实质意义上的诉讼要件制度的完善，不能寄希望于明文规定的类型制度的构建。
英文摘要：
As for the current categorized administrative litigation system in PRC, most scholars have expressed their negative evaluations. To them, it is due to the fact that the categorized administrative litigation system is stipulated in a non-expressive manner, that the administrative litigation system fails to exercise its full functions. Generally, scholars summarize the functions of categorized litigation system as expanding the scope of jurisdiction in administrative litigation, helping with the expansion of litigation rights, and being benefit to the improvement of litigation structure and procedures. However, all these three functions claimed above are questionable.Firstly, it is mainly the provisions on the scope of jurisdiction that shall determine the acceptability of cases, while the issue of categorization of litigation only occurs in the subsequent procedures. Thus, there is no direct connection between the categorization and the scope of jurisdiction. Secondly, with the promulgation of related judicial interpretations, all the three basic categories of administrative litigations have been established in PRC. For the purpose of improving the protection of procedural rights, it may be considered to introduce the litigation of the confirmation of null and void of administrative act, the post-confirmation litigation, and the preventative litigation, however, the impact of such changes shall not be overestimated. Finally, the fact that the litigation elements can form different structures in different litigation categories is not due to the categorized administrative litigation system directly, but to the structural requirement of such categories themselves. Thus, it does not actually affect the structure and specific procedures of litigation system or its improvement whether such categorizations are expressly stipulated or not.The current administrative litigation system in PRC has already established its own categorized system in a non-expressive manner. In comparison with the expressive manner, the difference only exists in format and thus is insignificant. The reformation of administrative litigation system shall focus on the improvement of the substantial elements of the litigation, instead of its categorizations.
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