日本行政诉讼法新增的诉讼类型:课赋义务诉讼

课赋义务诉讼的法定化在日本经历了40多年的争论和探索,最终才通过行政案件诉讼法修改法的方式得以实现。争论涉及的主要理论问题是在行政诉讼中如何处理司法权和行政权的关系,焦点是所谓尊重行政厅的首次判断权。新近修改的日本行政案件诉讼法对课赋义务之诉的分类及其诉讼要件、胜诉要件和判决方式的规定,对我国行政诉讼法的修改完善有一定的借鉴作用。

New Types of Litigation in Japanese Administrative Litigation Law: Litigation of Burden of Commitment

Litigation of burden of commitment,which has been in debate in Japan for over 40 years,is legal through amendment to the Japanese administrative litigation law at last.The main theoretical problem involved in the debates is how to deal with the relationship between the jurisdiction power and administrative power,and the key point is the so called respect for the premier decision of executive bureau.The types of the litigation of burden of commitment,important conditions of actions and recoveries,the forms of judgments are stipulated in the newly amended Japanese administrative litigation law and perfection of Chinese administrative procedure.