论正当行政程序与行政法的全球化

On Administrative Due Process and the Globalization of Administrative Law

正当行政程序的概念来源于英美法系,它构成了英美法系行政法的基石。而在大陆法系国家,根据传统行政法理念,公共利益优先,行政程序本身最初并没有得到重视。20世纪以来,各国行政法都发生了变化,正当行政程序逐渐成为行政行为的一项基本原则,甚至在某些大陆法系国家成为一项宪法性原则。正当行政程序在大陆法系国家的确立与发展构成行政法全球趋同的重要方面。随着法的全球化进程及全球治理的需要,全球行政法正逐渐形成,正当行政程序恰恰是全球行政法形成的主要表现。行政法的全球趋同与全球行政法的形成是行政法全球化的两个方面,正当行政程序在这两方面的发展显示出行政法已经不再是一国之内的法,行政法的全球化已然成为客观事实并会进一步深入发展。

The concept of administrative due process comes from the common law, which constitutes the base of administrative law of common law, and the administrative procedure itself initially did not receive attention in the countries of civil law, because the public interests overrides according to the tra- ditional concept of administrative law. Since the last century, the administrative law has changed in many countries and the administrative due process has become a fundamental principle of administrative acts, furthermore it has become a constitutional principle in some countries of civil law. The establish- ment and development of administrative due process in the countries of civil law constitute an important aspect of global convergence of administrative law. With the process of the globalization of law and the need of the method of global governance, the global administrative law shall take forms and the adminis- trative due process is properly the main performance of it. Tile global convergence of administrative law and the formation of global administrative law are two aspects of globalization of administrative law, while administrative due process in these two areas shows that administrative law is no longer the law within a country and the globalization of administrative law is to be objective fact and will develop con- tinuously.