基于实质性化解行政争议角度对重作判决的思考

Thoughts on the Judgment of Remaking Administrative Acts Based on Substantive Resolution of Administrative Disputes

摘要: 重作判决是我国理论认可的判决形式，其立足于行政行为实效性，督促行政机关及时依法履职。但重作判决制度本身存在诸多缺陷，立法及司法层面的不足，使司法实践中存在过度谦抑适用、“作与不作”边界模糊等问题，导致程序空转、相对人利益无法得到保障，最终无法实现实质性化解行政争议的目的。本文以实质性化解行政争议角度出发，对我国重作判决制度完善方向予以思考：应当明确判决拘束力对行政机关的法律效果，并明确区分撤销判决与重作判决适用情形或条件，以及重作判决的内容具体程度应基于裁量余地理论。

Abstract: Judgment for conducting again is a form of judgment recognized theoretically in China, which is based on the effectiveness of administrative acts and impels administrative organs to perform their duties according to the law in timely. However, there are many defects in the judgment system it-self, and the deficiencies in the legislative and judicial levels make the judicial practice too modest and restrained to apply, and the boundary between “doing and not doing” blurred, which leads to the empty transfer of procedures, the lack of protection of the interests of the relative person, and ultimately the failure to achieve the purpose of substantive resolution of administrative disputes. From the perspective of substantive resolution of administrative disputes, this paper reflects on the improvement direction of the judgment of remaking administrative acts system in China. It is nec-essary to clarify the legal effect of the binding force of the judgment on the administrative organs, and to clearly distinguish the application situation or conditions of the judgment of abrogation and the judgment of remaking administrative acts, and the specific content should be based on the dis-cretionary space theory.