摘要
行政机关负责人出庭应诉制中,"告官不见官"本身就是存疑的命题;该制度对于行政纠纷之化解、提升行政机关依法行政之助益有限,也难体现对原告和法院的尊重。同时,该制度的实施,理论上面临着与代理制度、行政首长负责制相冲突,现实中也存在出庭不出声、庭审冲突增加、出庭成本过高的困境。应对《行政诉讼法》第三条第三款的"应当"作倡导、希望之义的解释,并赋予法官通知行政机关负责人出庭的权力,以规避该制度面临的困境。
＂The accused officer doesn＇t appear in court＂ is a doubtful proposition by itself in the system of administrative organization chief representative＇s appearing in court, which provides limited help to the resolution of administrative disputes and to the improvement of law-based administration, and which hardly reflects respect for the plaintiff and the court as well. Meanwhile, the implementation of the system is faced with conflict with the representative system as well as the Administrative Chiefs Responsibility System in theory and dilemma of no expression in court, increasing trial conflict and high appearance cost in reality. The ＂should＂ in the third paragraph of the third article of Law of Executive Accusation should be construed as advocation and expectation, as well as an authorization to call for administrative organization chief representative＇s appearance in court so as to avoid the predicament of the system.
出处
《福建行政学院学报》
2017年第4期51-61,共11页
Journal of Fujian Administration Institute
关键词
行政诉讼
行政机关负责人
出庭应诉
administrative procedure
administrative organization chief representative
pleading in court
