程序违法行政行为的补正

Amendment of Administrative Action Violating Legal Procedure

如何处理依法定程序行政与行政效率之间的矛盾是行政法经常面对的难题。在处理程序违法但实体内容正确的行政行为时所面临的正是这样一个问题,而补正则是协调这两项原则之冲突的一项折中方案。对单纯程序违法的行政行为采取比较宽容的态度并加以灵活处理是国外行政法的总体趋势,只是宽容程度和处理方式有所不同。权衡我国相关因素并比之于其他国家,借鉴德国经验、确立补正制度是必要的,但在设定补正要件和期限时,应比德国更为严格,且应协调好补正与处理程序违法的其他制度之间的关系。

It is an eternal problem about how to deal with the conflict between the principle of due process and administrative efficiency. When dealing with the administrative action violating some procedures but with a correct decision, the very problem emerges. There may be many ways to deal with the trouble. As an eclectic method, making an amendment has been advocated by many scholars recently. The amendment, as a remedy, has been prescribed in Chongqing Administrative Procedure Interim Regulations （Expert Propositional Draft, 2003）, Administrative Procedure Act of the People＇s Republic of China （Expert Propositional Draft, 2004）, and especially Hunan Provincial Administrative Procedure Provisions （implemented on October 1st, 2008）. But there are many differences among these three documents. What＇s more, the amendment is not compatible with other remedies about unlawful administrative actions, such as revocation, correction and voidance. So there are still a lot of problems to be resolved concerning to amendment The amendment has been prescribed in the Administrative Procedure Act of Germany, which was put into force in 1976, and the ideas of amendment embodied in the above three documents derived just from Germany. In other countries, such as France, Portugal, Japan, Korea, Britain and America, although the comparable legal system doesn＇t exist, they take also a lenient policy on administrative actions which only disobey procedure provisions. Therefore, it is feasible to use German amendment for reference, although appropriate alteration is necessary. The particular circumstances of a nation decide the method selection, such as the economic and politic aim, the citizen＇s attitude to principle of procedural legality and efficiency, and the citizen＇s opinion on the procedural independent value and the procedure instrumentalism, etc. According to the situations of China at present, it is necessary to prescribe amendment system in the Administrative Procedure Act of China in the future. And we should choose a stricter policy than Germany. At least, when an administrator does not hold necessary hearing or give sufficient reasons, the decisions made by him should not be legitimated by amendment. What＇s more, this system should be compatible with other remedies for violation of procedures.