Research On Judgment Of Breach Of Administrative Procedure In Administrative Litigation

In the course of socialist legal construction, the value ofprocedural justice has been increasingly concerned and praised by thepeople, because substantive justice relies largely on procedural justice.Administrative procedure has occupied a large part of Administrative law,thus it should be elevated to the same position as administrative entity.However, for quite a long time, under the influence of “valuing entity,despising procedure” in the administrative field, breach phenomenon ofadministrative procedure still prevails, seriously damaging theadministrative management order and the legitimate interest ofadministrative counterpart. With the phenomenon of “man suing governmentofficials” blooming everywhere, in the process of administrativelitigation, the judge will inevitably face a lot of illegal acts ofadministrative procedure, thus they need to make judgments for the legalconsequence. In accordance with the current Administrative Procedure Lawand the juridical interpretation, with regards to breach of procedurallaw, it’s usually abrogating the judgment, only under two specialcircumstances will it be judged as being illegal or invalid; since breach of procedure law is abrogated, the administrative body can conduct thesame new act. The administrative act-abrogating breach of procedure law,is admittedly paying attention to the value of procedure, but uniformabrogating in neglect of the actual condition may likely breach theefficiency principle and stability of law; meanwhile, to sentence thedefendant to make the same administrative act means nothing to the accuser.The flaw of current law has aroused the suspicion from different sides.From the juridical practices over the recent years, the judge’sadministrative act regarding the breach of procedural law is not confinedto judgment abrogation any more, and now they rely more on value judgmentand legal interpretation. Although the theoretical achievements from theacademic circle are rich, they still cannot provide clear guidance forthe judges to make judgment. The author takes the amendment ofAdministrative Procedure Law as the opportunity and tries to put fortha relatively rational and operable mode for judging the breach ofadministrative procedure for reference. This paper firstly expounds thefundamentals of the concept, expression form of breach of administrativeprocedure and exceptional conditions, evaluates the relevant provisionsof the current Administrative Procedure Law, juridical interpretation andamendment draft as well as the juridical practices, and analyzes theexisting problems. Then, this paper combines the extraterritoriallegislation, judicial experience, academic achievements to weigh thethree pairs of value factors that influence the judgment and puts forwardthe ideological framework for judgment of breach of administrativeprocedure. The author proposes to use the degree of breach of procedurallaw and the possibility of supplement as the standard and divide theadministrative act—breach of procedural law into three types includingserious breach, general breach and slight breach. And in response to thesethree types, the paper proposes three abrogation types: invalidity confirmed, abrogation and remaking, and breach confirmed and supplement.Moreover, it lists the exceptional conditions and sets the applicablerestrictions for remaking and supplementing the judgment. At last, theauthor briefly proposes the suggestions for perfection based on the secondreview draft of the amendment of administrative procedure law.