行政指导论文：论我国行政指导的司法救济

1、. 行政指导论文：论我国行政指导的司法救济【中文摘要】行政指导作为一种柔性的管理方式,在我国的行政管理实践中逐渐被推广使用,尤其是在大力开展社会主义市场经济的今天,其灵活性和积极性使得其已经成为引导社会经济活动的重要手段。但同时也由于其自身的不规和不完善,在实践中总会给相对人的合法权益造成损害,因此,对行政指导进展司法救济就显得很必要。而行政法学界对行政指导是否应给予司法救济存在分歧,其理论根底在于行政指导性质的界定上,本文赞同行政指导属于行政行为的观点,并给予了简要论证,这也为将行政指导纳入司法救济围的提供了条件。本文首先从行政指导及其司法救济的概念入手,简要分析了行政指导的行政行为性质,这

2、是行政指导司法救济的理论根底。其次,我们从多个方面对行政指导司法救济的必要性和可行性做了详细的论证和分析,是为在我国建立和完善行政指导司法救济制度提供理论支撑。接着,文中从我国的行政指导实践出发,剖析了行政指导的消极影响和现实损害,以及司法救济实践中存在的一些问题,并对其原因进展了探究。本文最后一局部,从理论创新、法律修改和制度建立三个方面,从不同角度对健全我国行政指导司法救济制度的方法和思路做了进一步探讨。【英文摘要】Administrative guidance has increasingly been used in various areas, as the acceleration

3、 of Chinas market economy and legal administration. The activity of both the government and administrative counterpart is mobilized by its unique fle*ibility and softness, which is the result of effectively improving the administrative efficiency. On the other hand due to the deficiencies of adminis

4、trative guide such as greater fle*ibility and difficulty to control in practice, a lot of violations have occurred which impede the further presentation of its active role. Our problem in practice are mainly shown in unscientific decision-making, opaque behavior, converting to e*ecutive order easily

5、, too much discretion and fuzzy responsibility, all of which infringe the legal rights of the administrative counterpart in various degrees.The legislation lag of the administrative guidance is the main reason for its violation e*ists, in which the conservative judicial review should be a more direc

6、t factor. Because of the theoretical controversy on the definition of administrative guidance an effective judicial relief system has not yet formed in our country although it is a powerful way to protect rights. According to the traditional principle of administrative law, the administrative guidan

7、ce is not considered as an administrative action. This makes the administrative guidance out of the scope of judicial review. But the author argues that this definition is open to question. The implementation and tangible results of administrative guidance are based on e*ecutive power. In other word

8、s the government could not guide for the counterpart without legal authority. And an indirect legal relationship can be established between the government and the counterpart if the guide is accepted.Judicial relief of administrative guidance is not only a theoretical issue but a real problem. Wides

9、pread practice of administrative guidance makes it even more necessary. It is in line with the trend of modern administrative law and the only way to mature administrative guidance system. “There is damage there must be relief, which is also the basic requirement of modern rule of law. In China, the

10、 lack of law in the procedure and relief led to more inappropriate, illegal, and mandatory administrative guidance e*isting in practice. While vigorously developing the socialist market economy and the building a harmonious society, China is facing the needs of reconstruction and improvement for adm

11、inistrative guidance system, in which the establishment of judicial relief system plays an irreplaceable role. Then, based on the actual situation in China, how to establish the system of judicial relief as soon as possible is such an urgent issue.In the long run, we must give administrative guidanc

12、e and its judicial relief specific legislation which is in line with the inevitable trend of administrative law requirements. As an e*ercise of e*ecutive power, there must be a legal basis for administrative guidance, to make the administrative authorities fulfill their obligations and responsibilit

13、ies. But for the present situation, the more realistic, urgent way is to modify e*isting laws and regulations or by judicial interpretation so as to make administrative guidance e*plicitly included within the scope of judicial relief. We also need e*pand the way of relief through system innovation.

14、There should be less controversy at the theoretical level on judicial relief of administrative guidance, but “putting aside disputes and first specification. This is a gradually established and perfected process.We need to solve many problems to establish and improve the system of judicial relief, i

15、ncluding the scope of administrative litigation, the choice of litigation solutions, legal accountability, and the usage of other relief measures and so on. This paper gives these questions detailed analysis and proposes some useful suggestions in order to provide theoretical support for establishin

16、g and improving the relief system of administrative guidance.First, not all administrative guidance can be given administrative lawsuit. Abstract guidance involves in our political system and usually is reviewed incidentally by administrative review. And in the specific guidance, only the illegal, p

17、art of inappropriate, alienated ones can bring an administrative lawsuit. If there are not any defects in the guidance and the damage is caused by the relatives own accident, we can not give this situation an administrative lawsuit. Secondly, we argue that the type of litigation for administrative g

18、uidance does not contain plaint of change. The change means that the intervention of judicial power against e*ecutive power. And the fact is that the peoples court can not replace the administrative organs to implement administrative act. Moreover, because the administrative guidance itself is a pro

19、fessional action, there is inherent in this regard the Court has many deficiencies to change previous act.On the legal responsibility, we should consider the special nature of administrative guidance, because the occurrence of the damage may also be at fault of the administrative counterpart. So we

20、should adopt the principle of shared responsibility. The responsibility between the government and the counterpart can be divided into two types: one is the disciplinary responsibilities, such as reprimand and administrative penalty; the other is remedial responsibilities, such as e*ecutive pensation, an apology and so on. These two types are distributed legitimately between the government and the counterpart,not concentrated in one party.In addition, judicial relief is only one type for administrative guidance. In order to better protect the legitimate righ