正当程序原则的司法逻辑——“于艳茹诉北京大学违法撤销学位案”判解

Judicial Logic of Due Process Principle——Interpretation of Yu Yanru v. Beijing University's Illegal Abolition of Academic Degrees

现有的部分行政法规范缺少必要的程序规则,需要引入法律上未宣告的正当程序原则进行补充。"于艳茹诉北京大学违法撤销学位案"展示了可供借鉴的逻辑结构。在正当程序的效力根据上,通过《行政处罚法》等类型法中既定程序的类推适用填补《学位条例》的程序漏洞。即借助法律方法,将违反正当程序理解为违反法定程序,不同于"合理-合法"的二元评价机制。在正当程序的基本内容上,以当事人的知情权和陈述申辩权是否得到保障来衡量程序的正当性。针对同类情况,由本案引出的一般司法逻辑是:先证明实体法上存在不完全性、违反计划和影响规范功能的程序法律漏洞,且有与被诉行为的重要性质相同的相似法律;再说明诉讼法上类推适用所得的结论仍是法定程序审查权的范畴;最后按照被类比法律中程序内容的专属程度,选择抽象出法律要件作原则式的援引或直接作规则式的"借用"。

A few of administrative laws lack procedural rules and need to be supplemented by the principle of due process. ＂Yu Yanru v. Beijing University＇s Illegal Abolition of Academic Degrees＂ shows a judicial logic that can be used for reference. On the validity basis of due process, the loopholes of procedures in ＂degree regulations＂ can be filled through the analogy of procedures in the ＂Administrative Punishment Act＂ and other types of laws. That is to say, with the help of legal methods, the violation of due process is interpreted as a violation of legal process, which is different from the reasonable-legitimate＂ binary evaluation mechanism. On the content of due process, the legitimacy of the procedure is measured by whether the party＇s right to know and the right to defend the statement are guaranteed. For the same situation, the general judicial logic derived from this case is：Firstly, it proves that there are procedural loopholes in substantive laws that are incomplete, violate plans, and affect the normative function, and there are similar laws that are of the same important nature as the accused action. Then, it states that the conclusion of the application of analogy inprocedural laws is still the scope of the power to review legal procedures ; Finally, in accordance with the degree of exclusiveness of the procedures of the analogy law, choose to extract legal requirements to quote as a principle or a rule.