受欺诈行政行为的违法性和法律责任——以行政机关为视角

本文在简要梳理了法院对受欺诈行政行为的审查后,以行政机关为视角,认为基于相对人欺诈而实施的行政行为具有违法性,但判断导致这种违法性的过错标准应当是法律上对义务的配置,因而行政行为的违法与行政机关的过错并不完全一致;受欺诈行政行为引发的法律责任的确定必须以主观过错和客观违法为要件而不能仅仅以客观违法为要件。本文以此为基础,主张在我国进行四个方面的法制改革,即确立无效行政行为制度,改革仅以违法为构成要件的行政赔偿制度和不以主观过错为要件的行政执法责任制,完善实施授益行政行为的事前和事后程序制度。

On the Illegality and Legal Liability of Administrative Action Misleadingly Made

Brief: After briefly introducing the review by courts of the fraudulent agency action, the article from the perspective of agency believes that agency decisionmaking based on fraudulency by the opposite party is illegal. However, the criterion of judging who is responsible for such illegality should be the allocation of duties by law. So the illegality of agency action is not wholly consistent with the fault of agency. Determination of legal duties led by fraudulent agency action shall be based on conditions of both subjective fault and objective illegality rather than the condition of objective illegality. By this argument, the article urges for legal reforms in four fields, which includes the establishment of system of invalid agency action, reforming the administrative compensation system whose constitutive condition is only the illegality and the liability system of administrative law enforcement that does not include the condition of subjective fault, improvement of pre-process and post-process system of making agency action of conferring interests.