论行政诉讼判决形式的重构——从司法权与行政权关系的角度分析

行政诉讼是人为的宪政制度设计的结果,行政权与司法权两种权力运作模式的目标截然不同,这是现实中司法权与行政权关系紧张的根源所在。正视司法权与行政权的差异性是行政诉讼判决形式改革的基础。在现有的裁判方式中,驳回诉讼请求判决应当全面取代维持判决,撤销判决中应规定重作判项,但内容不宜具体,履行判决应当根据不同情况来决定是否应规定具体的内容,变更判决范围不宜过大,确认判决的存在仍有必要。

Reconstructions of the Forms of Judgments for Administrative Litigation

Administrative litigation is the result of constitution system designed by man. The targets administrative power and judicial power work to achieve are totally different, which is the fundamental reason for the tensions between the two powers in practice. But, facing up to this difference is the base to reform the forms of administrative judgments. As to the existing forms, sustaining judgment must be replaced completely by non-suit judgment. Cancellation judgment should contain the order, which could not be described in detail, to make the defendants remake its decision. Judgments that order defendants to fulfill its responsibility must be judged whether to provide contents in detail according to different situations. In addition, the applying scope of amendment judgment should not be too widely set and finally, it is necessary to keep affirmation judgment.