关于“利害关系”的判断标准在理论与实务中莫衷一是、存有争议。传统上，判断利害关系的理论有实际影响说、特殊利益说、要件说等方法，但相关理论均存在着或过宽、或过窄、或标准内涵不统一、或主观性过强等问题。2017年最高法院在“刘广明案”中对保护规范理论的引入，一改传统判断标准的思路，将判断诉诸规范的查明与解释，具有标准客观化、体系化，提供了法律论辩的平台，对不同类型案件的适应性强等诸多益处。然而，保护规范理论作为域外理论，也存在着诸如适用土壤尚不具备、司法适用难度较高、存在内生缺陷、不当限缩原告资格等批评声音。传统方法与保护规范理论的对立，一时相持不下。在此背景下，笔者试图通过探究两种方法在司法实践中的应用效果，来探究其优劣之处。实践中，保护规范理论虽呈现增长趋势，但占比较低，传统方法依然为实践的主流判断方法，保护规范理论案件的驳回率远高于传统方法案件。与此同时，通过要件说与保护规范理论在典型案件的对比适用，在“刘广明案”“田家乐案”中发现，保护规范理论存在法律解释不确定、适用过程复杂等问题，相较之下要件说适用较为高效便捷，但在“联立公司案”中，又体现了保护规范理论论证充分、说理性强、诉诸法律评价等独特优势。两种方法的根本思维差异在于，要件说主要诉诸事实判断，通过行政行为是否对权益造成实际影响的事实建立起利害关系，而保护规范理论主要诉诸法律判断，通过规范探寻行政机关有无保护起诉人权益的义务建立起利害关系。理论上经常将二者对立起来，但事实上无论是美国法上的“两层结构标准”，还是英国法上的“法律与事实背景的整体考量”要求，亦或是“联立公司案”法院裁判文书的混合要件说与保护规范理论的说理，均呈现出事实判断与规范判断的二分趋势。因此，笔者试图整合要件说与保护规范理论的相关要素，将事实审查（实际影响、因果关系）前置，以排除大量事实上明显不具有利害关系的案件，同时将规范审查（主观公权利）后置，通过规范查明与解释，增强论证的客观性、说理性，最终形成了“事实-规范”二阶式审查标准，以期为法院关于利害关系的司法审查提供体系化、可操作的路径。
There are different opinions and controversies about the standard of judging the " relationship of interest " in theory and practice. Traditionally, there are practical influence theory, special interest theory, theory of elements and so on, but there are some problems such as too wide, too narrow, or not unified in standard, or too subjective. In 2017, the Supreme Court introduced the theory of protection norms in the Liu Guangming Case. It changed the traditional way of thinking and resorted to the clarification and interpretation of norms. It has objectivity and systematization, provided a platform for legal argumentation, and has strong adaptability to different types of cases. However, as a foreign theory, the theory of protection norms also has some criticisms, such as lack of applicable soil, high difficulty of judicial review, endogenous defects and improper limitation of plaintiff's qualification. The conflict between the traditional method and the theory of protection norms is inextricable.In this context, The author tries to probe into the application effect of two methods in judicial practice, to identify the pros and cons.. In practice, although the theory of protection norms has shown a growing trend, it occupies a relatively low proportion. Traditional methods are still the mainstream judgment methods in practice. At the same time, through the comparison between the theory of elements and the theory of protection norms, In the cases of Liu Guangming and Tian Jia Le, it is found that there are some problems in the theory of protection norms, such as the uncertainty of legal interpretation and the complexity of application process. In contrast, the theory of elements is more efficient and convenient to apply, but in the "United Company Case", it embodies the unique advantages of the theory of protection norms such as adequate theoretical argumentation, rational, legal evaluation. The fundamental thinking difference between the two methods is that theory of elements predominantly appeals to factual judgment, relationship of interest is established based on the fact that an administrative act has a real impact on the rights and interests, while the theory of protection norms predominantly appeals to legal judgment, relationship of interest is established based on the criterion to explore whether an administrative organ has the obligation to protect the rights and interests of the plaintiff. Theoretically, the two theories are often opposed to each other, but in fact, either the "two-layer structure standard" in American law, the "overall consideration of legal and factual background" in English law, or the mixed elements of the court decision and the reasoning of the theory of protection norms in the "United States Corporation Case", all show a dichotomy of factual judgment and normative judgment.Therefore, the author attempts to integrate the important elements between the theory of elements and the theory of protection norms, preposition the factual examination (actual influence and causal relationship) to exclude a large number of cases that obviously not have relationship of interest in the facts, and post-the norms examination (subjective rights) to strengthen the objectivity and rationality of the argumentation by way of standard identification and interpretation, so as to form the “Fact- norms” second-tier Review standard, which is expected to provide a systematic and operational path for the judicial review of relationship of interest by courts.
