论宪法中的行政诉权

中国宪法第41条中的“控告权”不等同于、但包含了“行政诉权”的内涵。宪法中的行政诉权具有两种属性:一是作为公权利的“监督权”,二是作为私权利的侵权后的“救济权”。前者是政治性权利,也是实体性权利,后者是非政治性权利,是典型的程序性权利。这意味着人们长期把行政诉权仅仅作为一种救济权或程序性权利有失偏颇。为了规范行政诉权行使的秩序,行政诉讼法对宪法中的行政诉权在内容上进行了缩限,并在权利的外在形式上体现出程序性特征,但这不意味着行政诉讼法中的行政诉权所继受的权力属性有所改变。

On the Administrative Litigation Right in the Constitution

The "right to sue" in Article 41 of the Constitution of our country is not equal to, but contains the connotation of "administrative litigation right". The administrative litigation right in the Constitution has two attributes:one is the "supervision right" as a public right,and the other is the "relief right" as a private right after infringement. The former is political right, but also substantive right, while the latter is non-political right, a typical procedural right. This means that it has been biased to have regarded administrative litigation as a kind of relief right or procedural right for a long time. In order to standardize the order of the exercise of the administrative litigation right, the administrative litigation law reduces the content of the administrative litigation right in the Constitution, and embodies the procedural characteristics in the external form of the right, but this does not mean that the power attribute of the administrative litigation right in the administrative litigation law has changed.