论抽象行政行为的不可诉性与可附带司法审查性

抽象行政行为纳入行政诉讼受案范围与法院对抽象行政行为的司法审查不完全是一回事。法院对抽象行政行为的司法审查,包括专门审查和附带审查两种方式,将抽象行政行为纳入行政诉讼受案范围属于前者,然而,在我国现行法院体制下,抽象行政行为不宜具有可诉性,不宜将其纳入行政诉讼受案范围;但规章及其以下的抽象行政行为在实践中事实上具有可附带司法审查性,我们可以在修改《行政诉讼法》时完善现行部分抽象行政行为的附带司法审查制度,这是一种更为明智的选择。

On the Non- litigious Nature and Incidental Judicial Review of an Abstract Administrative Act

administrative act falling within the administrative proceedings is different from one that falls within a judicial review by a court. The judicial review of an abstract administrative act consists of special review and attached review. The abstract administrative act that falls within the administrative proceedings belongs to the former. However, this author maintains that in accordance with the present judiciary system in China, it is improper to hold that an abstract administrative act is of litigious nature or is within the range of administrative proceedings. But regulations and the abstract administrative act as performed do have incidental judicial value. We can improve this attached judicial review system while amending the Administrative Proceedings Act, which seems to be a wise choice.