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理想的司法审查应当兼具维护客观法秩序和保护主观权利的双重功能。但我国现行行政不作为司法审查只能回答已经进入审理阶段的合法性问题,存在明显的缺陷。本论文拟从司法审查和目前我国行政法研究的核心范畴入手,深入分析我国现行行政不作为司法审查的困境,提出造成该困局的深层次因素并进一步提出解决方案为将行政法学研究的核心重点由对行政行为的考察转移到对相对人及其权利的研究上,简言之即是从“行为”到“权利”的转变。
The ideal judicial review should combine the dual functions of safeguarding the objective law and order and protecting subjective rights. However, the current administration in our country can not only answer the question of the legitimacy that has entered the trial stage without judicial review, but has obvious defects. This thesis intends to start with the judicial review and the core category of administrative law in our country at present, and deeply analyze the dilemma of current administrative non-judicial review in our country. The paper puts forward the deep-seated factors that cause this predicament and further proposes solutions to the core of administrative law study The emphasis is shifted from the investigation of administrative behavior to the study of the relative and its rights, in short, the change from “behavior ” to “right ”.