Research On The Judgment Standard Of Due Process From The Perspective Of Law And Economics

As one of the basic requirements of administration by law,"due process" has gradually become the focus of administrative law research and the consensus of practice circles.Since China has not yet formulated the code of administrative procedure,there are many deficiencies in the procedures stipulated in the existing single line law,which leads to the phenomenon of inconsistent standards and lack of certainty in the due process principle in the trial activities.Therefore,the importance of constructing the judgment standard of due process is increasingly highlighted.When judging the legitimacy of legal procedure,the cost-benefit analysis method of economics has great enlightening significance.The purpose of constructing the judgment standard of due process is to save the cost of social operation and improve the efficiency of administrative activities and judicial activities.From the perspective of economics,resources are always scarce.Therefore,the pursuit of fairness,justice and moral values in traditional jurisprudence should not be endless,but should be based on limited rationality.Good judgment standards of due process should first meet the minimum social cost and maximum social wealth.In the process of analysis,since the cognitive ability of people is limited,compared with the comprehensive analysis,from the cost of this factor focused analysis,more in line with the thinking logic of decision-making.U.S.courts for the research of this problem earlier than our country,and in the long-term judicial practice gradually started to use economics way of thinking,in goldberg v.kelly case court cases are already using cost benefit analysis,Matthews v.el Delhi court also use personal interests in the past,risk,social cost comparison between judgment due process or not,and be summed up as "the measure of interests",in the later a large number of cases by continual use,however,for risk considerations because of subjectivity,the standard is still can be room for improvement.China’s application of due process started relatively late,so in judicial practice,there are different cases of similar cases recognized by different courts,which can be roughly divided into "strict","lax" and "appropriate" according to the different degree of severity.From the perspective of cost and benefit,it can be found that "appropriate" due process judgment standard can not only realize the requirement of fairness and justice,but also avoid the waste of resources,which is more in line with economic benefits.After the degree of strict,this paper compared with error costs,administrative costs increase administrative costs to reduce the probability of error probability judgment,input-output ratio of three phase analysis,the three analysis combination for a system of judge program is justified or not,make up for the previous subjective defects existing in the "measure" of interest.Using the standard analysis,it can be concluded that only when the error cost is greater than the administrative cost,the increase of additional administrative procedures can reduce the probability of wrong cases,and the reinvested administrative costs can improve the overall revenue,the administrative act should be considered as not meeting the requirements of due process.