“正当程序”作为行政程序司法审查标准的立法建议

Legislative Suggestion About Taking "Due Process" As Standard for Judicial Review over Administrative Procedure

《行政诉讼法》第54条规定,具体行政行为违反法定程序将导致撤销或部分撤销,并可以判决被告重新作出具体行政行为。《行政诉讼法》对行政程序的要求改变了"重实体、轻程序"的执法模式。把"法定程序"作为司法审查标准有很大局限性,本文建议将司法审查标准提升为"正当程序"标准。

Article 54 of the Administrative Procedure Law prescribes that violation of legal procedure of a specific administrative act shall be annulled or partially annulled by judgment and the defendant may be required by judgment to undertake a specific administrative act anew.The administrative procedure was never required in the Administrative Procedure Law.The requirement has changed the used-to-be enforcement mode of ＂emphasizing the substantive law while neglecting the procedure ＂.However,there are many limitations if we take ＂legal procedure＂ as a standard for judicial review.This article suggests that the standard for judicial review be upgraded as ＂due process＂ standard.