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伴随国家治理体系现代化步伐,我国公民公共权力意识不断增强,行政纠纷亦呈现多样化、复杂化趋势,不履行法定职责的行政诉求案件不断增多,广受社会各界关注。从法渊源看,不履行法定职责的行政诉求案件应求诉于《中华人民共和国行政复议法》及其相配套的《行政复议法实施条例》。现行法律对不履行法定职责的判断标准及其决定方式都做出了相应界定,但尚存诸多问题。针对现有法律缺陷,应从法理层面界定《行政复议法》第28条第2项中的“不履行”法律概念,将驳回行政复议申请决定方式改为驳回行政复议请求决定方式,并在规范“拖延履行”时,应尽量限制行政机关的自由裁量空间,避免行政机关利用“法定期限”或“合理期限”拖延履行法定职责。完善行政复议决定中的不履行法定职责之相关法律条款,有助于行政复议机关发挥监督行政权力和解决行政纠纷的社会功能,为行政相对人提供及时、有效的行政救济。
With the pace of modernization of state governance system, the public awareness of public power in our country has been continuously enhanced. Administrative disputes have also been diversified and complicated. The number of administrative appeals that fail to perform their statutory duties has been on the increase and has drawn wide public concern. Judging from the source of law, administrative appeals that fail to perform their statutory duties should be appealed to the “Administrative Reconsideration Law of the People’s Republic of China” and its supporting “Regulations for the Implementation of the Administrative Review Law.” The current law makes a corresponding definition of the judgment standard and the decision method of non-performance of statutory duties, but there are still many problems. In view of the existing legal flaws, the legal notion of “non-performance” in Article 28 (2) of the Administrative Review Law should be defined from the perspective of jurisprudence, and the decision of rejecting the application for administrative reconsideration should be changed to rejecting the decision of administrative reconsideration request. “Delay in performance ”, should try to limit the discretion of the executive space, to avoid the use of administrative organs “statutory term ” or “reasonable period ” delay performance of statutory duties. Improving the relevant legal provisions of non-performance of statutory duties in the administrative reconsideration decision will help the administrative reconsideration organ exert the social functions of supervising administrative power and resolving administrative disputes, and provide administrative counterparts with timely and effective administrative remedies.