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我国行政诉讼法第5条规定:“人民法院审理行政案件,对具体行政行为是否合法进行审查。”简称为合法性原则。该原则确定:人民法院在行政诉讼中审查的对象是行政机关实施的具体行政行为,审查的内容是具体行政行为是否合法。合法性审查原则贯穿于从收案到判决的全过程,概括反映了行政诉讼的基本行为规范。由于合法性审查原则具有确立我国司法审查制度基本内容的重要意义,甚至被有的学者称为我国行政诉讼法的唯一一项基本原则。行政诉讼法的颁布,是民主与法制建设道路上的里程碑,其中合法性审查原则对行政诉讼法确立的具体制度起着指导作用。但是,行政诉讼法实施以后,实际效果并不如人意,学术界和司法界以“走入困境”形容,并对现行法律关于受案范围、审查标准、判决方式等规定提出诸多修改意见,这些具体规定存在的问题多数与合法性审查原则有关。对合法性审查原则存在的问题进行必要的检讨并作相应修改,已成为走出行政审判困境的必经之路。
Article 5 of China’s Administrative Procedure Law stipulates: “People’s courts handle administrative cases and conduct a censorship of whether specific administrative acts are lawful.” Abbreviated as the principle of legality. The principle of determining: People’s Courts in administrative litigation review of the object is the administrative agency to implement the specific administrative act, the content of the review is the specific administrative act is legal. The principle of legality examination runs through the entire process from acceptance to judgment and generally reflects the basic code of conduct of administrative litigation. Since the principle of legality examination has the important meaning of establishing the basic content of the judicial review system in our country, some academics even call it the only basic principle of the administrative procedure law in our country. The promulgation of the Administrative Procedure Law is a milestone on the road to democracy and legal system construction, in which the principle of legality review plays a guiding role in the specific system of administrative procedure law. However, after the implementation of the Administrative Procedure Law, the actual results are unsatisfactory. Academics and the judiciary have described “going into difficulties” and put forward many amendments to the current law regarding the scope of the cases, the standards of review and the ways of judging them. Most of the existing problems are related to the principle of legality review. The necessary review and amendment of the existing problems of the legality review principle has become the only way out of the dilemma of administrative trial.