违反法定程序收集行政证据研究

Study on Collecting Administrative Evidence through Violating Legal Procedure

违反法定程序收集行政证据是指行政主体在行政执法中没有依据行政实在法所规定的程序要件收集行政证据并进而做出行政行为的状态,表现为行政主体单方面向行政相对人取证、强迫取证、隐蔽取证、不进行质证而取证、仅仅收集有利于行政主体的证据等。违反法定程序收集行政证据并不是一个简单的具体行政行为问题,而是牵扯到行政主体及其公职人员的行政作风、行政行为的司法化和行政的过程监控问题。因此,有效构建违反法定程序收集行政证据的制度和规则对于提高我国行政权行使的质量、与法治发达国家接轨有着非常重要的意义。

collecting administrative evidence through violating legal proceaure refers to au- ministrative subjects collect administrative evidence and make administrative act not according to the requirements of due process as prescribed in administrative positive law when they are in the administrative enforcement of law. It is expressed as administrative subjects obtain evidence ,ob- tain evidence by compulsion, obtain evidence by concealment, obtain evidence not through cross -examination and only collect the evidence that is beneficial to administrative subject from the administrative counterpart unilaterally, etc. It is not a simple specific administrative act, which involves administrative style, judicialization of the administrative act and the process monitoring of administration. So, the effective construction of institution and regulation about collecting ad- ministrative evidence through violating legal procedure is very important to improve the quality of exercising administrative power in our country and integrate with the developed legal states in the word.