A Study Of Minor Illegality In The Procedure Of Administrative Behavior

The Administrative Procedural Law of 1990 stipulated that administrative actions that violated statutory procedures should be revoked.Such a one-size-fits-all provision was questioned by many academic circles and could not be implemented in judicial practice.Therefore,the Administrative Procedural Law of 2015 changed this provision,stipulating that administrative actions that violate "legal procedures" should be revoked or partially revoked.It also stipulates that "the administrative action procedure is a minor violation" and "the right of the plaintiff shall not arise." The "actual impact" of the administrative action verifies the violation of the law.For the first time,the new concept of "slight violation of the procedure" has been introduced,and different procedural violations have been separated.The minor violations of administrative behavior procedures are still not clear on the issues of connotation and recognition.This article begins with the legal provisions and judicial practice,and explores the essence of the "slightly illegal procedures."Through the combing of theoretical and legal developments of minor violations of administrative behavior procedures,it can be seen that the academic community has gradually reached a consensus that administrative procedure violations are a violation of legal procedures for administrative actions to a certain extent or have a certain degree of illegality.However,there is no uniform standard for the degree of "slight violation" in both theory and practice.Through the analysis of a large number of cases in practice,it is possible to summarize how to judge "minor violations",and to judge that the two elements of "slight violations" are "a slight violation of administrative procedures" and "have no practical impact on the rights of plaintiffs".judgment:When judging that "the administrative behavior procedure is slightly illegal",the value of the procedure for the violation of administrative behavior should be considered.There are two criteria for the value of the procedure.One is to see whether the procedure is beneficial to achieve a good entity result,and the second is to see if the procedure is independent of the entity result.In addition to other aspects such as participatory rule,procedural rationality and humane equivalents,administrative procedures have these two standards,then administrative actions that violate the procedure are difficult to judge as "minor."When judging “no actual impact on the rights of the plaintiff”,the causal relationship between the procedural violation and the entity result is emphatically considered.When there is no causal relationship between the two,regardless of the type of the administrative action,its effectiveness will not be affected by the procedure.Illegal influence.When judging the causality,it is determined that if there is no violation of the program,the result of the administrative act may be different,then the “proceeding minor violation” rule cannot be applied to the illegal behavior of the program.And this possibility must be obvious,that is,if a neutral person who has the general ability to judge with administrative staff can read the relevant dossier and documents,it can be judged that this possibility exists,and the procedure should be illegal.It is considered to affect the actual rights of the plaintiff.