行政协议合法性审查中正当程序原则的法律适用

Legal application of due process principle in the review of the legality of administrative agreements

行政协议的合法性与合约性审查是现行司法解释确立的双阶审查标准,然而在行政协议的合法性审查中,并未明确是否包含正当程序原则。通过对司法裁判文书的梳理,正当程序原则在行政协议合法性审查中,存在个案中未普遍确立正当程序原则作为审查要件、个案中对正当程序中的听证程序是否进行审查不明确、正当程序原则仅在裁判说理部分运用等问题。为完善正当程序原则的法律适用,建议以指导性案例的形式明确对正当程序原则进行审查,将听证程序作为行政协议合法性的必要要件,将正当程序原则解释为法定程序并在裁判依据部分适用。

The legality and contractual review of administrative agreements is a two-stage review standard established by the current judicial interpretation. However, in the legality review of administrative agreements, it is not clear whether the due process principle is included.Through the review of judicial judgment documents, the due process principle has the following problems in the review of the legality of administrative agreements: the case does not generally establish the due process principle as a review element;it is not clear whether the hearing procedure in the due process is reviewed in the case;the principle of due process is only used in the reasoning part of the referee. In order to improve the legal application of the principle of due process, it is recommended that the principle of due process be clearly reviewed in the form of a guiding case, the hearing procedure be taken as a necessary element of the legality of the administrative agreement, and the principle of due process be interpreted as a statutory process and applied in the judgment basis.