行政訴訟恢復效力判決的反思與修正

Reflection and Amendment of The Administrative Litigation Restoration Effectiveness Judgment

恢復效力判決由我國司法解釋所創，但目前該判決類型尚無法對應我國《行政訴訟法》規定的既有判決方式。在司法解釋中，恢復效力判決與責令重作覆議決定判決被置於同一條款且二者的適用條件未被嚴格區分。當覆議改變決定實質違法、達到可撤銷程度且已消滅原行政行為的效力，同時滿足原行政行為合法或雖違法但須保留效力的條件的，才有適用恢復效力判決的餘地。作為積極形成類判決，恢復效力判決與尊重行政首次判斷權原則存在某種衝突，但引入“裁量權縮減至零”作為隱含適用條件，可有效緩和上述緊張關係。儘管在法律規範層面，恢復效力判決已構成訴外裁判，但我國尚無禁止訴外裁判的原則性規定，且在具體條款中兼有隱含禁止或允許訴外裁判理念的實例。實質性化解行政爭議、為原告提供更徹底的保護是此種判決方式被允許訴外裁判的正當性基礎。未來應從以下方面對恢復效力判決進行修正：細化該判決與責令重作覆議決定判決的區分適用情形、引入“裁量權縮減至零”的隱含條件、為人民法院增設通知受原行政行為不利影響的當事人作為第三人參加訴訟的義務。

The restoration effectiveness judgment is created by China’s judicial interpretation, and it cannot correspond to the existing form of judgment stipulated in China’s Administrative Litigation Law. In above judicial interpretation, the restoration effectiveness judgment and the remaking reconsideration decision judgement are placed in the same article, and the premise for their application is not strictly distinguished. When the reconsideration change decision is substantially unlawful, revocable and has extinguished the effect of the original administrative action, and at the same time satisfies the conditions that the original administrative action is lawful or illegal but must retain its validity, there is room for the application of the restorative effect judgment. As a positive formation judgment, the restoration effectiveness judgment is contrary to the principle of respecting the first judgment of the executive, but the introduction of“discretion is reduced to zero”as an implicit condition of application can effectively alleviate the above tense relationship. Although at the level of legal norms, the restoration effectiveness judgment has constituted an out-of-litigation judgment, there are no principled provisions prohibiting an out-of-litigation judgment in China, and there are examples of implicit prohibitions or permits of an out-oflitigation judgment in specific provisions. Substantively resolving administrative disputes and providing more thorough protection for plaintiffs are the basis for the legitimacy of this form of judgment to be allowed to make an out-of-litigation judgment. In the future, the restoration effectiveness judgment should be amended from the following aspects: refining respective applicable situations of the restoration effectiveness judgment and the remaking reconsideration decision judgement, introducing the implied condition of“discretion is reduced to zero”, and adding an obligation for the court to notify the party adversely affected by the original administrative action to participate in the litigation as a third party.