登录 EN

添加临时用户

论行政诉讼受案范围中“不产生实际影响”条款的适用

On the application of "no actual impact" clause in the scope of accepting cases in administrative litigation

作者:周璟
  • 学号
    2019******
  • 学位
    硕士
  • 电子邮箱
    zho******com
  • 答辩日期
    2022.05.24
  • 导师
    余凌云
  • 学科名
    法律
  • 页码
    45
  • 保密级别
    公开
  • 培养单位
    066 法学院
  • 中文关键词
    行政诉讼,受案范围,实际影响,适用情形
  • 英文关键词
    Administrative litigation,The scope of accepting cases,Actual impact,Applicable situation

摘要

"No actual impact" clause refers to item 10, paragraph 2, Article 1 of the interpretation of the Supreme People's Court on the application of the administrative procedure law of the people's Republic of China in 2018 - acts that have no actual impact on the rights and obligations of citizens, legal persons or other organizations, and do not belong to the scope of administrative litigation of the people's court. This clause is an exhaustive clause for the judicial interpretation to list the situations that do not belong to the scope of accepting cases in administrative litigation, including the unfinished meaning of other listed situations, and provides a basis for judging whether the specific administrative act is actionable for new cases and cases that may appear in subsequent judicial practice.Through the analysis of typical cases in which the "no actual impact" clause is applied, it can be found that the current court has formed a certain consensus on the application of this clause, that is, judges directly and separately apply the "no actual impact" clause in the trial of administrative litigation cases related to administrative filing, reporting and reply, responsibility determination and administrative certification. Among them, for administrative filing acts, judges generally believe that administrative filing acts with the nature of licensing, examination and approval, registration and licensing can be sued. On the contrary, administrative filing acts that only collect, sort out and archive the materials submitted by the opposite party can not be sued; For the reporting and reply behavior, judges generally believe that the reporting and reply behavior of private interests can be sued, and the reporting and reply behavior of public welfare can not be sued; As for the acts of responsibility identification and administrative proof, judges generally believe that these two kinds of acts are not actionable, but there are some counterexamples that these two kinds of acts are actionable. That is, in the current judicial practice, there is a certain consensus on the application of the "no actual impact" clause, but there are also some disputes.For the dispute over the Actionability of liability determination, it should be recognized that it has had a practical impact on the rights and obligations of citizens, legal persons and other organizations, and the court can review its legitimacy. However, for other professional issues other than legitimacy review, if the court is not suitable to intervene, more experts, scholars and relevant practitioners in practice can be absorbed on the basis of the existing internal review procedures of administrative organs.For the dispute over the Actionability of administrative certification, it should be clear that when the administrative organ is indeed at fault, or when it is called administrative certification and actually confirms its power, the administrative certification made by the administrative organ belongs to the act that has an actual impact on the rights and obligations of citizens, legal persons and other organizations, and is actionable.