行政行为审慎程序的司法审查

On the Judicial Review of Prudential Procedures for the Administrative Act

为了控制行政行为作出之后可能面临的风险,我国行政机关创制了某些审慎程序。根据审慎程序作出的行政行为是否应当纳入司法审查,必须抛弃法条主义的机械司法观,从我国主客观混合的行政诉讼模式出发加以具体甄别。在主观诉讼模式下,对实体结果产生影响或对当事人权利具有构成性价值的审慎程序应当被纳入审查范围,并撤销违反这些程序作出的行政行为。对不能撤销的情况,原则上还应继续从客观诉讼的立场出发考虑是否适用确认违法判决,但某些不是借助理性规则构建的程序,以及规定在一般规范性文件中却抵触了上位法,或剥夺了当事人重要程序性权利,或设定了当事人的其他程序性负担,或没有公开实施的审慎程序不应被纳入审查范围。

In order to control risks that may be faced after an administrative act is made, the administrative agency has created some prudential procedures. Whether or not administrative acts made under such prudential procedures are included for the judicial review must be decided by abandoning the mechanical outlook on legalistic justice, and such administrative acts must be specifically distinguished from the perspective of the administrative litigation mode of China with subjective and objective mixture. Under the subjective litigation mode, prudential procedures that have an impact on substantive outcome or have a constructive value to the litigants' rights should be included for review, and those administrative acts made in violation of these procedures should be revoked. For irrevocable acts, in principle, the court should still continue to consider whether the judgment confirming illegality should be adopted from the standpoint of objective litigation. However, some other prudential procedures that are not established with the help of rational rules, and those that are provided for in the general normative documents but contradict the superior laws, or deprive the parties of important procedural rights, or impose other procedural burdens upon the parties, or are not publicly implemented should not be included for review.