论作为客观诉讼之机关诉讼

机关诉讼是指行政机关或行政机构之间因权限问题产生争议而请求法院予以解决的一种行政诉讼类型。从法国、德国、日本、英国和美国机关诉讼制度的具体内容来看,确立机关诉讼制度需要有历史传统、地方自治、法院权威以及现实需要四个条件。在我国建立机关诉讼的设想不符合实际,我国没有机关诉讼生长的土壤,机关诉讼与我国行政诉讼性质定位相左,法院缺乏应有的权威,借助诉讼程序推动实体法发展的愿望也难以实现。

On Administrative Organ Lawsuit in Foreign Experience and Chinese Practice

The administrative organ lawsuit refers to the court settling disputes on powers between administrative organs.Reference to the correlative system of France,Germany,Japan,U.K.and USA.shows that the administrative organ lawsuit requires four elements: historical tradition,regional autonomy,juridical authority and realistic demand.The proposal that Chinese administrative litigation law should include the administrative organ lawsuit is currently unrealistic for four reasons:first,the lack of suitable environment for administrative organ lawsuit in China;second,the disagreement between administrative organ lawsuit and Chinese administrative litigation law;third,the court has no full authority to deal with this dispute.And fourth,the prospect to develop the substantive law through litigation law can hardly come true.