Judicial Recognition Of Minor Violation In Administrative Procedure

In the new Administrative Procedure Law of 2015,minor violation rules of administrative procedure are added.The purpose is to further refine the rationality and diversity of the legal consequences of administrative procedure violation,and to strengthen the procedural consciousness and concept of administrative subjects in the process of administrative action.However,since the "Administrative Procedure Law" regulated the minor violation of the procedure,there are some differences in the judgment criteria of the slight violation of the procedure in judicial practice.The lack of clear rules and guidance not only leads to the problem of different judgments in the same case,but also has a certain impact on the judicial authority.Therefore,this paper takes empirical research as the main research method,carries out in-depth analysis of the existing legislative documents and the judgment rules in the current trial practice,and examines the legitimacy and one-sidedness of the judgment criteria for minor violations of administrative procedures from the legislative and judicial levels,with a view to further improving in theory.Starting from the judges' judgment documents,the judicial documents are retrieved with the key word of "minor violation of procedure",and the sample cases are summarized.The data information of the number trend and geographical distribution of cases in which the court confirms slight violation of administrative procedures in judicial practice are sorted out.At the same time,the relatively concentrated and typical forms and types of minor violations of administrative procedures are summarized into four categories: minor violations within the statutory time limit,minor violations of administrative action steps,minor violations with incomplete reasons,and minor violations in the form of administrative documents.On this basis,comparative analysis of the four types of administrative procedure minor violations and narrow procedural defects of the intersection situation,the type of intersection reflects the judge's understanding and application of the relevant legal provisions of "minor violations of procedure" deviation.From the reasoning part of the judges in the judicial documents,we can extract the common rules of judgment for minor violations of administrative procedures in judicial practice.Although these rules have certain legitimacy,they still need to be rethought from the theoretical level.The judgment rules of summarizing minor violations of administrative procedures mainly focus on five aspects: the determination of the scope of "law" in violation of statutory procedures,whether it affects the validity of substantive conclusions,whether it has practical impact on the rights of the plaintiff,whether the degree of procedural violations is enough to cause revocation,and whether it conforms to the principles of administrative economy and efficiency.These five universal rules of adjudication can not form a unified and clear guide,and they are faced with many difficulties and certain limitations in the process of the application of judges.Firstly,the non-quantification of adverbs of "slight" degree depends entirely on the judge's value judgment and discretion,which will inevitably lead to the decrease of the predictability of law.Secondly,the definition of the category of "plaintiff's rights have no actual impact" is unclear.The focus of the dispute is whether the scope of the subject of rights is limited to the plaintiff and whether the scope of the plaintiff's rights includes procedural rights.Finally,the misuse of the concepts of "minor violation of procedure" and "procedural defect" and the criteria of judgment is the core factor leading to the emergence of a large number of different judgments in the same case.In view of the above predicament and crux,we must perfect and reconstruct the current judgment standard of slight violation of procedure from three aspects.Firstly,we should define the legal concept of "minor violation of procedure" and clarify the boundaries between it and violation of legal procedures and defects of administrative procedures.Secondly,the criterion of "minor" should be clearly defined.Thirdly,introducing the system of natural cure at the institutional level,enriching the remedial ways and means of administrative procedure violations,in order to make up for the shortcomings of the legal concept and legislation of minor procedure violations.