类型化视野下撤销诉讼适用对象的重新界定

Redefining The Object Of Canceling Litigation Under Stereotyping

Canceling litigation is characterized by subjective lawsuit, forming lawsuit and protesting lawsuit which decide that it can only applies to specific administrative acts aiming for some legal effects, especially those should be cancelled because there is some legal defects. However, based on the effective remedy, it should temporarily be open to those invalid administrative acts, but not to the act that just refusing the people’s application. The administrative procedure law should be established as soon as possibly the way of development by stereotype, and on this basis, through specify the characteristics of canceling litigation and other types of litigation, redefining the object of canceling litigation. 撤销诉讼所具有的形成诉讼、主观诉讼和抗告诉讼的特性决定了其仅能适用于具体行政行为中的行政处理（单方的具体法律行为），尤其是可撤销的行政处理。不过，基于有效权利救济的考虑，撤销诉讼可对无效的行政处理暂时开放，而对于拒绝处理则例外地不能适用。我国《行政诉讼法》宜尽早确立类型化发展的思路，在此基础上，通过明确撤销诉讼的特性及与其他诉讼类型的关系，重新界定撤销诉讼的适用对象。