过程性审查:行政行为司法审查方法研究

Procedural Review:Research on Judicial Review Method of Administrative Action

为了应对行政行为领域日益增多的"复杂性"挑战,域外先进法治国家不约而同发展出了"过程性审查"这种不同于传统的实体性审查和程序性审查的司法审查新方法。过程性审查的本质是探索决定者的思维过程,即审查决定者的法律推理过程。过程性审查的运用,促进了行政行为说明理由制度的发展,并促进了学界对法律推理问题的关注和研究。当下中国的司法实践也在不自觉地运用过程性审查方法,但由于缺乏系统的理论指导,不时出现偏差。明确过程性审查方法,有多方面的重要意义,特别是有利于加强和规范裁判文书的释法说理。

In order to deal with the increasing challenges of complexity from the field of administrative actions, the judicial review method ＂process review＂ has been developed out in many advanced rule of law countries. This method is different from other traditional methods such as substantive review and procedural review. Its essence is exploring the thinking process of the decision-maker, i.e., to review the legal reasoning process of the decision-maker. This review method has promoted the development of the system of explaining the reasons for administrative actions and has promoted academic circles＇ concern and research on legal reasoning. In China, this review method is also applied unconsciously by the judiciary, However, owing to the shortage of systematic theoretical guidance, there are deviations from time to time. It is very important to establish the review method, especially, it will help strengthen and standardize the interpretation of judicial documents.