正当程序:解释不确定法律概念的判断标准

Due Process as the Standard to Exam the Interpretation of the Uncertain Legal Concepts

对于不确定法律概念,按大陆法系国家的学说,应当根据当前的需要通过解释加以明确。在我国司法实践中,行政机关可以对不确定法律概念作出解释,并进行行政裁量。在行政诉讼中,法院审查行政机关对不确定法律概念的解释,是通过审查基于不确定法律概念的行政裁量来实现的,因而就可以适用正当程序标准。正当程序不仅是审查不确定法律概念解释的程序性标准,而且是实体性标准。作为实体性标准,英国主要采用正常人判断,美国采用"剥夺甲方而授予乙方"范式,我国采用当事人同意规则。正当程序不仅是法院审查的标准,而且是行政机关解释和裁量时应该坚持的标准。

Under the theory prevalent in the Continental law system, uncertain legal concepts should be interpreted based on the current needs. In China, during their legal enforcement, administrative agencies would interpret uncertain legal concepts when exercising their administrative discretion. In the administrative litigation process, when courts review administrative agencies’ interpretation of any uncertain legal concept, what they actually review is the administrative discretion made by those administrative agencies based on their interpretation of uncertain legal concepts. Therefore, due process can be applied to the interpretation of uncertain legal concepts. When reviewing the interpretation of uncertain legal concepts, due process is not only a procedural standard, but also a substantive standard. As a substantive standard,the mainstream viewpoints in the United Kingdom and the United States are the Normal Judgment, and A-B Paradigm respectively, while that in China is Private Entity’s Consents. Due Process is not only a standard that courts would adopt, but also a standard that administrative agencies should adhere to when interpreting legal concepts and exercising discretion.