Research On The Judicial Determination Standard Of Illegal Administrative Procedure

As the judicial cognizance of the illegal administrative procedure is an indispensable part of the procedure of judicial review,it is the problem that the behavior procedure is not illegal.Therefore,when it is found that the procedure is illegal,it should follow some standards with certain(relative)clarity and operability.In our country,the study of administrative procedure is relatively late in our administrative jurisprudence.In the field of legislation,since the beginning of the 1980 s,the legislator of our country has begun to stipulate the process of exercising some important concrete administrative acts in its corresponding single act under the guidance of the constitution.Among them,the administrative procedure law,which was officially implemented in 1990 in 1989,has a milestone significance to the process of the rule of law in China.One of the legal reasons for the revocation of administrative actions is that one of the legal reasons is "violation of legal procedure".We should take the legitimacy of administrative action procedure into the scope of judicial review.However,this breakthrough is too simple and general and does not properly solve the problem of the standard of identification of procedural law in our judicial field.For example,our country belongs to the state of the law.When there is no clear legal provisions on a certain administrative procedure,there is no need to examine the legitimacy of the procedural law of the administrative act.If necessary,what standard should be used to examine it;in our judicial practice,can we understand the connotation of "violation of legal procedure" in terms of literal meaning,that is,as long as the administrative act violates the procedural rules of the law,"violation of legal procedures" ? It is also said that only when the procedure violates the legal rules to a certain extent constitutes a "violation of legal procedures".If so,then how to determine the critical point of illegal procedures should be established to take into account the independence of the program,the rights and interests of the parties and the value pursuit of the three party of the administrative power of the administrative subject.In addition,in the new revision of the "administrative procedure law" in 2014,we also added "minor illegal procedures,but no substantial impact on the rights of the plaintiff" only affirmed the consequences of the unvocation of the referee.How should we define the "minor violation of the law" here? How does it distinguish from "procedural flaws" in previous trial practice? The confusion of the standard of identification results in a large number of cases of "different cases in the same case" in China's judicial trial,which seriously undermine judicial justice and authority.The author believes that it is necessary to draw on or based on some more advanced theories to establish a relatively clear and reasonable standard of procedural law identification for the judges working in the frontline of the administrative trial.Through the analysis,induction and comparison of the cases of the administrative proceedings of the Chinese referee's net and the administrative procedure of the Supreme People's court,the author hopes to make a more thorough study on the standard of identification of the illegal procedures in China and put forward a clear and feasible standard.The final article,based on the essence of the modern administrative procedure law,gives the parties the rights of the procedural rights,restricts the administrative power to restrict the administrative power by procedural rights and thus realizes the control of administrative power and the protection of civil rights as the theoretical basis.At the same time,it fits the provisions of the new "administrative procedure law","procedural light and micro law",and proposes to use the procedural rights of the parties as the standard to solve the previous violation of the law.At the same time,the article proposes to use the theory of the principle of due process principle in the common law system to solve the problem of procedural law when the administrative act has no legal provisions.