Ayalysis Of Judicial Standard For Administrative Procedure Violating Law

Since the late1980s, when administrative litigation was established in ourcountry, large amounts of cases on administrative procedure violating law haveemerged in judicial practices. However, there exists a problem that courts of differentlevels in different areas don’t reach same or similar judgment on same or similarillegal administrative procedure, which not only impairs private parties’ and interestedparties’ legitimate rights and interests, but also, to some extent, constitutes challengeto judicial authority. Thus, the author thinks it’s necessary to fine reasons behind thatproblem through analyzing relevant administrative litigation cases.By analyzing relevant cases of administrative procedure in administrativelitigation during1996-2012recorded in gazette of the supreme people’s court of thePeople’s Republic of China and beida lawyee, the author found reasons of the problemlisted in the first paragraph are: First, minor courts mixed up some concepts as “defectadministrative procedure”,“inappropriate administrative procedure” and “illegaladministrative procedure”, which led to different judgments. Second, the moreimportant reason is that we lack of united judicial standard for judging whetheradministrative act done by administrative organ violates legal procedure. That is tosay, by applying different judicial standards, courts reached different judgments.As to the first reason listed above, the author clearly differentiates concepts of “defect administrative procedure”,“inappropriate administrative procedure” and“illegal administrative procedure” in this article. Courts can easily avoid erroneousjudgments as long as courts are conscious of those3concepts. As to iron out thesecond reason, the author analyzed judicial standards used in some other countriesand areas and thinks it’s imperative for our country to establish an united and practicaljudicial standard for judging whether administrative procedure of administrative actdone by administrative organ violates legal procedure. First, the principle of “dueprocedure” should be confirmed and improved. Second, courts should classify theinvolved administrative procedure, and then apply the right standard to judge whetherthe involved administrative procedure is legal or not. Different kinds of administrativeprocedures have their own different judging standard. If the involved administrativeprocedure is stipulated by statutory law, then the applicable judicial standard shouldbe whether the involved administrative procedure violated the law. But there’sexception for some involved administrative procedures of the administrative acts doneunder the condition of emergency or emergency measures taken by administrativeorgans merely for social safety or national interest. If the involved administrativeprocedure is not completely stipulated by statutory law, then the applicable judicialstandard should be whether the involved administrative procedure violated principlesof the law which stipulates the involved administrative act. If the involvedadministrative procedure is not stipulated by statutory law, then the applicable judicialstandard should be whether the involved administrative procedure violated theprinciple of “due procedure”.Hope the advices given by the author could effectively avoid the problem thatcourts of different levels in different areas don’t reach same or similar judgment onsame or similar illegal administrative procedure and effectively provide reference tosolve the problem that the legitimate rights and interests of private parties are notappropriately protected.