政策在行政诉讼中的适用研究

政策在行政诉讼中的适用实践比理论活跃,我国目前的影子性规定与司法审查根据的实际地位比较尴尬,政策在行政诉讼中适用具有合理性与特殊性,而西方法理学上的观点给予我们诸多启示,值得借鉴,确立政策在行政诉讼适用中的审查对象与审判依据的合理地位,并通过建立法律推理、司法解释、判例指导等制度予以保障是可行的做法。

Study on Application of Policy in Administrative Litigations

Application of policy in administrative litigations is more active in practice than in theory. In China, the actual status of shadow regulations and the basis of judicial review are rather embarrassing. Appli- cation of policy in administrative litigations bears features of rationality and specificity, and theories from west- ern jurisprudence have brought lots of inspiration which is worth learning. It is feasible to establish a reasona- ble status for application of policy in administrative litigations as investigation objects and trial basis, and to make guarantee measures by means of rules of legal reasoning, judicial interpretation and precedent guide- lines.