The Judicial Review Of Defects In Administrative Service Procedure

As an important condition for administrative acts to take effect,defects in service procedure will have an important impact on the effectiveness of administrative acts.However,in judicial practice,there is not a unified understanding of the standards for judicial review of defects in service procedure,and the mixed use of judgment methods can be found everywhere.The judicial review of service procedural defects should respond to procedural violation and improper procedure respectively within the scope of the judicial review in administrative litigation.The standards for judicial review should fully consider whether the legitimate rights and interests of the interested parties are infringed,the degree of realization of the purpose of the administrative procedure,the importance of the procedure itself,whether the defects can be corrected and eliminated,and whether the defects have the possibility of changing substantive trial results.According to the above five standards for judicial review,service procedure defects can be specifically divided into four levels: "significant obvious violation of law","general violation of law","slight violation of law" and "flaws of service procedure in narrow sense"."Significant and obvious violation of the service procedure" is manifested as the fundamental violation of the procedure in which the entity and procedural rights and interests of the person on whom the service is madeare seriously infringed and the contents of the administrative decision received cannot be realized obviously.On the legal consequences,it should be considered that the administrative act has not been served.The service procedure is generally illegal,which means that the entity or important procedural rights and interests of the person on whom the service is made are infringed,and the service procedure violates the principle of due process,which should be revoked in terms of legal consequences."Slight violation of service procedure" means that the service procedure only adversely affects the non-important procedural rights of the summoned in person and can be corrected to eliminate the procedural defect,or there is no possibility of changing the entity result in the restrictive administrative acts.It should be confirmed illegal in terms of legal consequences.The "flaws of service procedure in narrow sense" is manifested as improper procedure,including unreasonable procedure discretion.The most accurate judicial response to` it is to point out the improper procedure and then reject the corresponding lawsuit request of the plaintiff.The present way of judgment is not ideal to correct the defect of service procedure.Firstly,judicial practice usually confirms the invalidity of undelivered administrative acts,but the procedural defects of the undelivered administrative acts don't accord with the connotation of significant and obvious violation of law in nature,and it is logically inconsistent to confirm the invalidity of administrative acts that are not effective.It is necessary to solve the problem that the existing judgment methods can't cover the problem of undelivered administrative acts.After confirming that it has not entered into force,the administrative subject can choose whether to serve again independently within the service period,at the same time to be served the longest deadline to make clear a regulation,and strictly distinguish different treatment between the beneficial administrative acts and grant burden of administrative actsafter confirmation of non-entry into force.When the re-service of an administrative act enjoys the legitimate trust interest or the non-service of an administrative act infringes upon the legitimate rights and interests of the deliverer,the administrative subject shall serve it,otherwise shall be regarded as administrative omission;Second,confirmation of illegal judgments ignores beneficiary administrative acts,which leads to difficulties in its application in judicial practice.At the same time due to the lack of necessary remedies and the application of judgment re-operation,the potential impact of service procedural deficiencies may persist after the judgment.It should be emphasized that the corrective judgment is the subordinate judgment to confirm the illegal judgment,so as to truly achieve the purpose of resolving administrative disputes.Thirdly,there are a lot of sentence of rejecting in practice which regard the"flaws of service procedure in narrow sense" as Legitimate matters.This belittles the burden of proof in administrative litigation at the same time undermines the legislative purpose of the Administrative Procedure Law.There exists a conflict of jurisprudence.The corrective judgment has the validity of application.We should introduce the corrective judgment on the basis of narrowing the concept of “flaws of service procedure in narrow sense",standardize the content and mode of specific correction,so as to fill the vacancy between the existing Verdict methods and enrich the judicial review mechanism of defects in service procedure.