对违反法定程序的司法审查--以最高人民法院公布的典型案件(1985--2008)为例

Specific Administrative Act Violating Legal Process:Standard and Effect

学理上,对"法定程序"之解释有"法律、法规规定说"、"法律、法规和规章规定说"、"法律、法规、规章和宪法规定说"和"重要程序说"等四种学说,对违反法定程序之行政行为的法律效果,也存在着上"无效说"、"撤销说"和"区别说"等三种观点。最高人民法院公报上公布的有关违反法定程序的典型案件中,判决理由及判决主文与行政诉讼法的规定和学理解释之间存在着较大的差异。结合学理和司法实践,可以认为:法律、法规和规章规定的程序为"法定程序";在没有"法定程序"情形时,法院可以引入正当程序辅助判断之。认定行政行为违反法定程序之后,法院应当主要考虑"是否损害行政相对人实体法上的合法权益"之因素,区分不同情形分别作出撤销判决、确认判决和驳回诉讼请求判决。

According to the Administrative Litigation Law in 1989, violation of legal process is one of the legal grounds for courts to annul a specific administrative act. As to the interpretation of ＂legal process＂, there are four theories. One theory argues that, only laws and regulations of State Council can stipulate legal process. Another thinks that regulations of local governments can also stipulate legal process. The third theory argues that legal process can also come from the Constitution Law, but the fourth theory thinks that legal process means significant process, no matter where it originates. As to the legal effect of a specific administrative act violating legal process, there are also three different views, that is, the theory of invalidity, the theory of voidable and the theory of distinction. In perspective of no evitable corresponding relations between process violation and substantive disposal, ＂the theory of distinction＂ distinguishes different situations of process violation, which means that the legal effect of process violation is not the same and different disposals should be done according to concrete situations. In the classic cases relating to the violation of legal process in the Bulletin of the Supreme People＇s Court, there is relatively a large gap between the reasons and texts of judgments and the stipulations and interpretations of the Administrative Litigation Law. In several classic cases, courts depend on ＂due process＂ for judgment when no legal basis can be pursuant to. Such practices have played a positive role in promoting the idea of due process in administrative organs. However, the factual effect of the classic cases as ＂reference＂ or ＂guidance＂ may be extremely limited. Normative meaning of ＂violation of legal process＂ is often uncertain, and it will not be ascertained until the balance of interests in cases. According to the theory interpretations and judicial practices, this article thinks that, legal process can be stipulated by laws as well as regulations of State Council and of local governments. Where there is no such legal process, courts can resort to ＂due process＂ for judgment. When a specific administrative act violates legal process, courts should mainly consider whether the administrative act has damaged the administrative counterpart＇s substantial legal interests, and distinguish various circumstances to annul the administrative act, confirm the administrative act or dismiss the claim.