海南大学学报(社会科学版)

行政首次判断权原则是指在司法审查过程中,如果行政机关对于其职权范围内的事项并未作出相应的判断和处理,则法院不可以代替行政机关提前处理,而是需要等待行政机关自行先予处理后,再对其做出的行政行为进行合法性审查,这体现的是司法权对于行政权的尊重。然而,在行政首次判断权原则的司法适用中,还存在错误理解行政首次判断权原则的适用前提、错误使用行政首次判断权原则以及缺少对行政首次判断权的限制等问题。对此,可以通过明确适用行政首次判断权原则的情形,区分事实问题和法律问题的审查力度以及建立具有中国特色的预防性不作为诉讼等方式来解决,以实现司法权与行政权的动态平衡。

According to the principle of firs judgment power by administration, the court, in the process of judicial review, cannot preempt the administrative body to make a decision on the matters that have not been judged and handled by the administrative body within the scope of its functions and powers. On the contrary, the court has to wait for the administrative body to deal with the matters first, and then reviews the legality of its administrative acts, which reflects the respect of judicial power for the administrative power. However, in the judicial application of the principle of first judgment power by administration, there still exist such problems as misunderstanding the premises for its application, misusing this principle, and lacking the restrictions on this judgement power. Therefore, it is suggested to clarify the situations that are applicable to this principle, distinguish the force of review on factual and legal issues, and establish the preventive inaction litigation with Chinese characteristics and the like, so as to achieve a dynamic balance between judicial power and administrative power.