The Overview Of Examination Standard Of Administrative Litigation Violates Statutory Procedures

The question of administrative proceedings'examination standard is an important issue, closely linked theory and practice issues. Establishing a scientific standard of review has the significant instruction value to China's Administrative Litigation Law of the theory and practice of guiding the development. "Violates the legal proceedings" is China's examination standard to administrative procedure under valid request according to "Administrative Procedure Law". While affirmation the achievements, it is undeniable that because of China's" value entities, underrate program "historical tradition and the prevalence of the idea of "procedure instrumentalism", the historical legacy of "shadow "is found in our administrative procedures. It also shows that it is still not able to break the limitations that program is the mean to achieve fair entity in the administrative procedure system.Based on such time background, the scholars have many disputes and regretting on this examination standard's recognizing and our country's practice present situation. This article embarks from the examination standard's elementary theory. First it makes basic elaboration to the administrative proceedings examination standard's connotation and the idea foundation, which enables the reader to have a more profound understanding of this examination standard establishment. Next, the author emphatically discuss the examination standard recognizing of "violates the legal proceedings" in the theory, including the administrative procedure and the procedural right, the legal proceedings' area of law, the legal proceedings and the right procedure, violates legal proceedings contents and so on, and lays the foundation for the following practice part and consummation part. Afterward, the author bases on the present situation of the judicature level in our country, use theories and case or other methods to proof the stage, puzzlement and questions that the judicature practice experiences in the legal proceedings of illegal examination aspect, and point out that the examination of violating the legal administrative procedure in the lawsuit is gradually moving toward rationality along with the administrative legislation's consummation and the judicature practice's accumulation. While affirmation achievements, the authors is emphatic in discovering the corresponding question, and at the end of the article, suggest consummating it from consummating administrative legislation, validating legal proceeding idea and the principle's establishment and utilization and the suitable use of the proportion principleWhen we are referring the western legal system, we are more holding a practical and utilitarian purpose and then neglecting the cultural supporting behind system. Facing the vast foreign administrative procedural law, the author thinks while referring the successful experience in codifications in western developed countries, we should pay more attention to the exploitation and utilization of native resources. Therefore, the author takes the action that Hunan first formulated and promulgated "The provisions of the administrative procedure of Hunan Province" for example, pointing out that we should research from the following two aspects in how to perfect the administrative procedures in legislation:On the one hand, we should mainly correct legal tradition of legal procedures in the misunderstanding, prejudice and apathy by devoting time and energy to subjective state of mind. On other hand, we should mainly based on problems appear the theory and practice of "the administrative procedures provisions of Hunan" as the breakthrough point to perfect the shortcoming of program content, design, device and so on aspects in the legislation of administrative procedure by devoting time and energy to objective reasons.As for how to use the unfledged proper procedures concept and principle of proportionality in Administrative procedures censorship standards in our country, the author will combine theory with practice to point out that the proper legal procedures concept which is thought is exotic has make request to the judicature in our country. That is, the activities the administrative authorities take while exercising administrative power should follow the most basic requirements of the procedure; administrative procedure must meet the minimum equality in process, and should balance the appropriate applying of the interests of governments, the personal interests and the interests that applicable procedure may produce.Principle of proportionality, as an important principle that produced with the control of the administrative discretionary power, has appeared many times and is also reflected in the judicial practice of our country. This fresh material plays an important role in promoting, the further research and the discussion of principle of proportionality for Chinese scholars and have large proportion of simulative effect to the application of principle of proportionality under the present situation that using judicial legal procedures to examine administrative behavior.