行政诉讼中冲突规范适用选择的实现路径——以不同效力层级规范的冲突选择为对象

"上位法优于下位法"是处理不同效力层级法律规范冲突的基本规则。然而,行政审判中法官总体上对冲突规范的适用选择抱有明显的回避倾向。事实上,在现有法律框架下,法官有充足的理论和制度空间进行法律适用选择,排除与上位法相冲突的规范在个案裁判中的适用。在司法实践中,法官应当充分树立起职权自信,努力排除各种障碍的干扰,在遵守相关原则要求的情况下,准确判断、合理选择,并在裁判文书中予以充分、妥善地表达。

Approaches to Selective Application of Conflict Rules in Administrative Litigation taking the selection of conflicts between regulations with different grading of legal effect as objects

＂Higher legislation preferred to lower legislation＂ is the basic rule to resolve conflicts between regulations with different grading of legal effect. However, judges usually incline to sidestep the selection of conflict rules in administrative trials. In fact, there is enough theory and institution space to choose the applicable regulations that is not in conflict with higher legislation within the present law frame. In judicial practice, judges should build up authority confidence, overcome all kinds of barriers, make accurate judgment and reasonable choices according to relevant principles, and give adequate and proper expression in judicial adjudicative documents.