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我国当下的学术研究和司法实务在行政诉讼暂时性权利保护机制的设计上普遍存在以停止执行为原则和以不停止执行为原则这两条思考路径。作为司法审查过程中利益冲突与消解的制度表征,起诉是否停止执行本质上是在执行利益与延缓利益之间的权衡与取舍。比较法的观察同样显示,域外立法规定虽貌离而神似,通过立法赋予司法裁量权则体现出暂时性权利保护制度发展的共同趋势。我国现行立法的修改也应超越无谓的原则与例外之争,将重点转向对司法裁量概括审查和利益衡量二重基准的建构。
At present, academic research and judicial practice in our country prevail on the design of the mechanism of the temporary protection of rights in administrative litigation. The two thinking paths are the principle of cessation of enforcement and the principle of non-stop enforcement. As a system representation of conflict of interest and resolution in judicial review process, the suspension of prosecution is essentially the trade-off between trade-off and profit-taking. The comparative law observation also shows that although the provisions of extraterritorial legislature are similar in appearance but divorced, the legislative tendency of giving judicial discretion reflects the common tendency of the development of the system of temporary protection of rights. The revision of the current legislation in our country should also go beyond the unnecessary dispute between the principle and the exception, shifting the emphasis to the construction of a double benchmark for the general review of judicial discretion and the measurement of interests.