关于《行政诉讼法》第十八条内涵及适用之商榷

在行政诉讼的管辖中,行政拘留是否适用《行政诉讼法》第十八条关于"限制人身自由的行政强制措施"的管辖规定,国内许多著名专家与学者对此持肯定观点,司法实践也基本如此。然而,通过透视其赖以产生和存在的法学理论基础及现实的法律依据,不难发现,二者其实互不包容,即行政拘留不属于《行政诉讼法》第十八条之范畴,单一的行政拘留案件只能适用《行政诉讼法》第十七条关于行政诉讼管辖的规定。

Discussion on the Meaning of the Article of 18 Administrative Procedural Law

Concerning to the jurisdiction of administrative litigation, whether the administrative attachment apply to the 18th article of the administrative procedural law ,with regard to the administrative forcing measure, confining personal freedom, or not? A good deal of experts and scholars in our country conceive positive opinions, as well as the judicature practice. However, by analyzing the foundation of law theory and the actual law basis which produced the administrative attachment, it is not difficult to find that they cannot contain each other, which means that the administrative attachment is not included in the 18th article of the administrative procedural law. A single case of administrative attachment has no alternative but to apply to the of the law, a rule about the jurisdiction of administrative litigation.