论行政诉讼被告确认规则的理论基础

“谁行为,谁被告”是对我国现行行政诉讼被告确认规则“谁主体,谁被告”的完善,是由人权理念的提升、依法治国方略的实施、中国加入WTO等现实国情决定的。文章从宪政基础、现实基础和行政行为的性质等方面探讨行政诉讼被告确认规则的理论基础,进而论证“谁行为,谁被告”的行政诉讼被告确认规则的合理性。

The Theoretical Basis on the Rule of Confirming the Defendant of Administrative Lawsuit

The present rule of confirming the defendant in Chinese administrative lawsuit,that is,the administrative organ that undertake the specific administrative act is the defendant,is an improvement of the rule,of which the administrative subject is the defendant.This improvement is determined by the following facts: emphasizing on the idea of human right,carrying out the strategy of ruling by law,China's entry into WTO,and so on.This paper discusses the theoretical basis of the rule of confirming the defendant in administrative lawsuit from the following aspects: constitutional basis,realistic basis,the nature of administrative act,and so on,and then discusses the rationality of the rule of confirming the defendant in administrative lawsuit,that is,the administrative organ that undertake the specific administrative act is the defendant.