訴訟外行政權與司法權的關係構造及其路向－－以原平縣交警與華陰市法院“執法碰撞”為例的展開

Relationship Structure and Its Indication of the Executive Power and the Judicial Power outside the Lawsuit: For the Enforcement Collision of the Yuanying County Police and Huayin City Court as an Example

現行法律規範並未為訴訟外化解行政權與司法權之間的“碰撞”提供直接的制度支撐。究其根源在於，我國憲法缺乏對處理訴訟外行政權與司法權關係的頂層設計，並且已有條款關涉的“伏勢”制約機理，存在嵌入新場域的難度。經深入分析發現：當前權力的憲法構造具有歷史局限性，與當下法治的現狀並不契合，而且，當下我國已經具備構造訴訟外權力關係的基礎與條件。因此，應當將訴訟外兩者之間的關係納入憲法關懷的視野，並應以“互相配合，互相制約”憲法精神加以指引。基於此，進一步探究訴訟外行政權尊重司法權的限度，並提出通過架構訴訟外導向性機制，以確保訴訟外兩種權能運轉良態化。

The current law does not provide the direct supporting system to resolve the collision between judicial power and executive power outside the lawsuit, the primary cause is the lack of the top designation about the relationship between executive power and judicial power in our constitutional law, and it is difficult to embed the new domain about the existing provisions relating to the fluctuating restriction mechanism. After thorough analysis, we find that the constitution structure of current power has historical limitation, which does not coincide with the status of the law. At the same time, our country already has the basis and condition to establish the power relations. Therefore, the constitution law should care the relationship between judicial power and executive power outside the lawsuit, and they should cooperate and restrict each other with the guidance of the constitutional spirit. In order to ensure it works smoothly, we should further explore the limitation on executive power respecting the judicial power, and put forward to guidance mechanism.