论行政争议——兼论行政争议与民事争议之区分

行政争议作为行政诉讼制度的核心概念 ,是行政诉讼与民事诉讼、刑事诉讼的根本不同之处 ,如何界定与判定行政争议则是行政诉讼理论中的一个基本问题。本文在公私法二元分立理论背景之下指出行政争议是行政主体在行使公权力过程中与相对人 (公民、法人和其他组织 )之间发生的、依据公法可以解决的争议 ,并以主体、公权力、权利义务等因素作为判断行政争议的标准。提出了从制度层面增加“行政争议”的概括性规定和设立权限争议的解决机制两点建议。

On Administrative Dispute--An approach to the distinguishment between administrative dispute and the dispute of civil affairs

As a kernel concept of the administrative litigation system, the term administrative dispute is quite different from civil litigation and criminal proceeding. One of the fundamental theoretical problems lies in how to define and distinguish the administrative dispute. The paper, taking both public law and private law as its dualistic background, believes that the administrative dispute is a dispute that happens between an administrative subject and a relevant persons such as citizen, legal corporate or some other relevant organizations and that can be solved under the public law according to such administrate norms as subject, public power and right and obligation while proposing two suggestions ——increasing generalizing regulations for administrative dispute from the viewpoint of system and establishing dispute-solving mechanism to clarify the limit of authority.