相对人抵抗权与中国的行政法治实践

无效行政行为因具有重大和明显的违法情形而自始不发生任何法律效力.为维护自身合法权益,相对人对无效行政行为除了可以不受任何时间限制地通过申诉、申请复议、提起诉讼等途径寻求救济外,有权无视其存在,拒绝履行义务,必要时甚至可以进行正当防卫.鉴于我国有关相对人对无效行政行为抵抗权的立法现状和存在问题,应该在今后的行政程序立法中,进一步确立和完善相对人抵抗权制度,并重点解决以下几个方面问题:(1)明确无效行政行为的确认标准;(2)增加对侵益性无效行政行为的防卫规范;(3)建立确认无效的特别程序;(4)改革现行强制执行的司法审查程序.

Counterpart''''s Right to Resistance and It''''s Application in the Rule of Administrative Law in China

Right to Resistance is originally a conception in the field of politics and legislation. It means the rights that a citizen possesses to disobey or even resist performing of duties made by the country' s laws at the time of necessity. Its theoretical rationale is largely the theory of social contracting, the theory of people's sovereignty and of natural rights.If we say that citizen s rights to resistance in the constitution is only embodied in the abstract and general provisions, then counterpart s rights to resistance in the administration law have been applied fully in many countries through the establishment of the system of invalid administrative act. The legal system of invalid administrative act is virtually entitling people to ignore and resist the country's administration directly based on his own comprehension and judgment on the law.Invalid administrative act has no legal validity from the beginning because of its gross and evident illegalities. Therefore, the counterparts, in order to safeguard his legitimate interest, apart from invoking the remedy through appealing, applying for reconsideration and instituting a proceeding, etc. without any time limit, are also entitled to ignore its existence and refuse to perform obligation, and even can adopt persuasion, warning and escape, etc. for justifiable defense and resistance at the time of necessity.There are some stipulations in laws, regulations, rules and other norms of our country on "invalidity" of the administrative act. But the meaning of " invalidity" of administrative act differs from the invalid administrative act theory in administrative law. Invalidity of administrative act means an administrative act with no legal validity, which is a conception of extensive definition, including not only that the administrative act is invalid from the beginning but also that the administrative act loses validity when discharged and annulled.On the other hand, some laws, regulations and rules, although without stipulating on "invalidity" of administrative act, have yet definitely endowed counterparts with the right of resistance to certain administrative acts. But full and virtual application of counterparts' resistance right in judicial practice has many challenges ahead with lots of problems waiting to be solved, for example, unclear division between invalid administrative act and general illegal administrative act, and lack of the particular procedure of confirming invalid administrative act.In view of the existing problems in the current legislative practice, the author thinks that future legislation of administrative procedure should further establish and perfect the system of counterpart s resistance right, and also focus on the solutions of the following aspects: (1) to fix standards for confirming the invalid administrative act. (2) to make up provisions concerning the defense against interest - encroached invalid administrative act. (3) to set up particular procedures of confirming invalid administrative act. (4) to reform on the current judicial procedure of enforcement.