The Discerning And Correcting For The "Zhi-zheng Judgment" Of Administrative Procedural Flaws

When searching for public referee documents,we can find that there has been a large number of a kind of "extrajudicial" judgment for judicial review of administrative procedural flaws in practice for a long period of time,which is "zhi-zheng judgment",that is,no acknowledgment of invalidity,revocation,confirmation of an illegal verdict or order to fulfill obligations,but only indicates that the administrative act is flawed in the judgment.The form of this judgment should be dismissing the plaintiff's claim and the legal basis is the provisions of article 69 of the new Administrative Procedure Law.The revision of the Administrative Litigation Law in 2014 added to article 74,paragraph 1,item 2 of the determination of illegitimacy judgment of minor administrative procedural violations,that is,the addition of a type of judgment for minor administrative procedural flaws.However,the aforementioned "zhi-zheng judgment" is still widely used by judges in judicial practice.It has a certain degree of legitimacy,but there are also some problems,in particular,what is the difference between it and the confirmation of illegitimacy judgments is worth observing and thinking about.This article discerns and corrects "zhi-zheng judgment" of administrative procedural flaws from the following aspects.The first chapter is to define the "zhi-zheng judgment" of administrative procedural flaws.The first section introduces the two concepts of administrative procedures and administrative procedural flaws.Based on it,the second section defines the "zhi-zheng judgment" of administrative procedural flaws,including its applicable object,its judgment form,its ways of "zhi-zheng",the reasons for the referee and the legal basis.The second chapter explains the legitimacy of the judgment judgment" of administrative procedural flaws."zhi-zheng judgment" of administrative procedural flaws not only has theoretical supports,including the need to have a diversification of legal consequences of administrative procedural flaws,the need to balance the administrative process justice and administrative efficiency,the need to correctly handle the relationship between procedures and entities,but also has the practical significances,which means it complements the principle of reviewing the legality of administrative litigation and guarantees the normativeness and rigor of administrative behaviors.The third chapter is an empirical investigation of the "zhi-zheng judgment" of administrative procedural flaws.Firstly,the sample description and general characteristics of the retrieved "zhi-zheng judgment" cases are introduced.Then,it describes and classifies the forms of the administrative procedural flaws in the "zhi-zheng judgment",which include steps,order,time,and method flaws,corresponding to the four elements of administrative procedures.Finally,it points out that there are four main problems in the "zhi-zheng judgment" including the inconsistency of recognition criteria of the applicable object,the lack of referee reasoning,the lack of legal basis,and the lack of binding force on the administrative subjects.The fourth chapter is the applicability of the "zhi-zheng judgment" of administrative procedural flaws.The first section analyzes the applicability of the determination of illegitimacy judgment of minor administrative procedural violations,including its applicable characteristics and applicable conditions.The second section analyzes the applicability of the "zhi-zheng judgment" of administrative procedural flaws,including the criteria of the administrative procedural flaws being "zhi-zheng"and applicable conditions of the "zhi-zheng judgment".Based on the the first two sections,the third section delineates the applicable limits of the two judgments,including emphasizing the complementarity of the application of "zhi-zheng judgment"and illustrating the application of "zhi-zheng judgment" by examples.The fifth chapter is the improvement of the "zhi-zheng judgment" of administrative procedural flaws.The first section points out that the reasoning of "zhi-zheng judgment" should be strengthened.The second section proposes to increase the safeguards for the "zhi-zheng judgment" of administrative procedural flaws,including ordering the administrative subjects to take remedial measures,putting forward judicial advice and strengthening internal administrative supervision.