论非诉行政强制执行中司法审查的强度——以行政行为的执行力为视角

On the Intensity of Judicial Review in Non-Litigation Administrative Compulsory Enforcement—From the Perspective of the Enforceability of Administrative Acts

摘要: 随着我国司法体制改革的日益深化与非诉行政强制执行案件数量的增多，我国确立了以人民法院强制执行为原则，行政机关强制执行为例外的二元行政强制执行体制。但我国在审理此类案件的实践中，尚未明确界定法院行使司法审查权的力度，从而产生了行政行为本身或是法院所作决定何者能够作为强制执行的根据或名义发生执行力的问题。执行力并非为一切行政行为所共有，而仅是下命性的行政行为特有，其本身可以直接成为强制执行的根据或名义。由于司法权的消极被动性，除行政行为存在重大明显违法情形以外，法院只能就行政机关提出的申请进行形式审查，具有执行力的仍是行政行为本身。因此，可以将非诉行政强制执行中司法审查的力度进行重新定位，以行政行为是否存在重大明显违法情形为判断标准，主张以形式审查为原则，实质审查为例外的司法审查方式，平衡司法监督与行政效率的关系，推动我国非诉行政强制执行体制的完善与发展。

Abstract: As China’s judicial reform continues to deepen and the number of non-litigation administrative compulsory enforcement cases increases, China has established a dual administrative enforcement system in which compulsory enforcement by the people’s courts is the general rule, while compulsory enforcement by administrative agencies is the exception. However, in judicial practice involving such cases, the intensity of the courts’ exercise of judicial review has not yet been clearly defined. This has led to the question of whether the administrative act itself or the court’s ruling should serve as the legal basis or authority for compulsory enforcement. Enforceability is not shared by all administrative acts; rather, it is a distinctive attribute only of mandatory administrative acts, which may themselves directly serve as the basis or authority for compulsory enforcement. Owing to the passive and reactive nature of judicial power, except where the administrative act is manifestly and seriously unlawful, the court may conduct only a formal review of the application submitted by the administrative agency, and it is still the administrative act itself that retains enforceability. Therefore, the intensity of judicial review in non-litigation administrative compulsory enforcement may be redefined by taking whether the administrative act is manifestly and seriously unlawful as the criterion, advocating a model in which formal review is the principle and substantive review is the exception. This approach seeks to balance judicial supervision with administrative efficiency, and to promote the improvement and development of China’s system of non-litigation administrative compulsory enforcement.