The Role Of Due Process In The Judicial Review

The due process in administrative litigation in China may trace back to several seminal cases,including Tian Yong,Liu Yanwen,and Zhang Chengyin,and is later supported by the Supreme Court in its second trials,retrials,gazettes,and guiding cases.There is no direct legal basis of due process in China.However,to achieve trials in accordance with laws,courts always try to reconcile relevant provisions of illegal administrative acts in Administrative Litigation Law with the due process and held the due process as the standard of judicial review to determine the legality of administrative acts.In doing so,the due process functions as the standard of judicial review,rather than legal basis,in judicial trials.There are abundant cases involving the due process,but judicial attitudes behind such cases are not unanimous.The reconciliation of provisions of illegal administrative acts with the due process requires necessity and exclusivity,and such requirement is necessary for categorization.From the perspective of categorization,the due process has two different meanings in the judicial review: violation of legal procedure,and abuse of powers.Specifically,the due process with the meaning of the violation of legal procedure applies to the situation where there is no procedural laws and it requires administrative agencies to provide minimal procedural guarantees for private entities.On the other hand,the due process with the meaning of abuse of powers applies when administrative agencies exercise their administrative discretion.There are two types of administrative discretion related to the due process.One is the procedural discretion as there is no procedural laws,and the other is the substantive discretion,which is based upon the uncertain legal concept.The application of the due process in the sense of the procedural discretion is the same as the application of violation of legal procedure.However,the application of due process in the sense of the substantive discretion,namely,the criteria for the interpretation of uncertain legal concept,is quite broad,ranging from fair hearings by administrative agencies,private entity's consents,opposition to bias,to whether the public feel oppressed,which resembles the United States' s substantive due process of A-B paradigm.The judicial practices indicate that due process has gone through a long-term development,from studying foreign theories,policy responses,judicial practices to legal confirmation.Such development process of establishing a regime may have universal significance.