On The Principle Of Due Process And Its Application In Administrative Law Enforcement

The principle of due process has a long history.It originated from Article 39 of the Magna Carta in 1215,and then developed into an important legal principle in British law after a series of legal documents.Under the influence of British law,the principle of due process has been greatly developed in North America.In particular,the Fifth and Fourteenth Amendments to the constitution issued after the independence of the United States made the principle of due process an integral part of American law,and had a profound impact on the legislation of other countries and regions in the world.Today,the principle of due process is gradually accepted by more and more countries and regions,and has become an important part of their legal systems.In China,due to the influence of the concept of “valuing entity but neglecting procedure”,procedure,especially the principle of due process,has not been paid enough attention for a long time.Since the founding of the People's Republic of China,China has started the legislation of substantive laws.However,the legislation of procedural laws represented by the Criminal Procedure Law of the People's Republic of China,the Civil Procedure Law of the People's Republic of China and the Administrative Litigation Law of the People's Republic of China did not start until after the Third Plenary Session of the Eleventh Central Committee of the Communist Party of China.Although our country has completed the leap from entity to procedure in legislation,the current constitution and law only stipulate the legal procedure but not due process,especially the expectation of administrative procedure law which makes the leap from the legal procedure to due process seem far away.However,it is gratifying that the spirit and provisions of the principle of due process have emerged in various forms of legal norms in China.Although our country has not formulated a unified code of administrative procedure,the basic requirements of a series of the principle of due process,such as hearing,listening to opinions,and avoiding,have been stipulated in Law of the People's Republic of China on Administrative Penalty,Law of the People's Republic of China on Administrative Permission,the Administrative Compulsion Law of the People's Republic of China,the Public Security Administration Punishments Law of the People's Republic of China and other laws.The author does not speculate on how long it will take for China to formulate an administrative procedure law that can put the basic requirements of the principle of due process into one pocket,but the author is committed to introducing the basic requirements of the principle of due process into administrative law enforcement as soon as possible,so as to improve the ability of administrative organs and their staffs to carry out their administration according to law.The theoretical contribution of this paper is not the first to put forward the principle of due process,but only to extend the basic requirements of the principle of due process to thirteen items,such as showing identity,informing,explaining reasons,listening to opinions,hearing,collective discussion and decision,banning unilateral contact,avoiding,opening information,time limit,right relief,lawyer's intervention and special protection for the vulnerable groups,etc.They are deeply embedded in administrative law enforcement procedures.The main body of this paper is divided into eight chapters.The first chapter is “the historical origin of the principle of due process”.This chapter mainly introduces the origin and development of the principle of due process,including the germination of the principle of due process in Britain,the development in the United States and the spread in France,Germany and Japan.The second chapter is “the establishment and development of the principle of due process in China”.This chapter mainly introduces the development of the principle of due process in China,from attaching importance to substantive law and despising procedural law in the early days of the People's Republic of China to paying equal attention to substantive law and procedural law after the reform and opening up,from paying attention to only the legal procedure in the nineties of the last century to the principle of due process in the early years of this century,which is generally accepted by the theoretical and practical circles.The third chapter is “the basic theory of the principle of due process”.This chapter mainly studies the basic theory of the principle of due process-legitimacy,including the basic meaning of legitimacy,the discrimination between legitimacy and similar concepts,and the judgment standard of legitimacy.The fourth chapter is “the principle of due process and administrative law enforcement”.This chapter mainly discusses the relationship between the principle of due process and administrative law enforcement.It also points out why and how to embed the principle of due process in administrative law enforcement in China,which sets the transition and foreshadowing for the whole article from " the principle of due process " to "administrative law enforcement".The fifth chapter is “the application of the basic requirements of the principle of due process in administrative law enforcement I”.In this chapter,the author selects six basic requirements of the principle of due process,including showing identity,informing,explaining reasons,listening to opinions,hearing,collecting discussion and deciding,and expounds how to apply these requirements in the administrative law enforcement procedure.The sixth chapter is “the application of the basic requirements of the principle of due process in administrative law enforcement II”.In this chapter,the author selects four basic requirements of the principle of due process,including banning unilateral contact,avoiding,opening information and time limit,and expounds how to apply these requirements in the administrative law enforcement procedure.The seventh chapter is “the application of the basic requirements of the principle of due process in administrative law enforcement III”.In this chapter,the author selects three basic requirements of the principle of due process,including the right relief,lawyer's intervention and special protection for the vulnerable groups,and expounds how to apply these requirements in the administrative law enforcement procedure.The eighth chapter is “the legal consequences of violating due process”.This chapter mainly discusses the legal effect of violation of due process,the judicial judgment on violation of due process,the violation of due process and compensation liability and the violation of due process and the obligation of obedience of administrative counterpart.