On The Judicial Review Of The Flaws In Administrative Procedures

When the legal processing method of administrative procedure problems is too singular,in order to make up for the current statutory deficiency,mitigate the conflict between program value and efficiency,The court always make the judgment of administrative procedures flaws.This practice continues to this day,and still has value in research under current law.Strictly speaking,administrative procedure flaws is not a truly legal language,couldn’t be regulated.Its concept and scope is unclear,it couldn’t be distinguished from minor administrative procedural violations and other similar concepts,these problems obstruct the operational efficiency of judicial review of administrative procedural.In recent years,the number of the cases of Administrative procedure flaws is keep growing,in this situation,define the concept and scope of administrative procedure flaws is urgent priority.Firstly,in order to define the concept of administrative procedure flaws,the article find out that the administrative procedure flaws in our country legal documents is mean"small or minor problems",In Germany,Japan,and Taiwan,administrative procedure flaws is a theoretical system,contains different administrative procedure problems and corresponding legal consequences.Although there are some differences in the understanding of administrative procedure flaws among different scholars,the above differences have gradually narrowed with the development of legislation.The new Administrative Litigation Law and the judicial interpretation of the Supreme Court clarified the related concepts such as minor procedural flaws.Based on this,the concept and scope of administrative procedure flaws is determined:Procedural discretion is improper,applicable to violate the principle of proportionality and equality,but has not yet violate due process.Secondly,judicial review of improper procedural discretion is inconsistent with the traditional understanding.Based on this,the second part of the article is explains its legitimacy,necessity and legality.It does not completely exceed the scope and intensity of judicial review of the administrative litigation,apart from this,judicial review of administrative procedure flaws not only has legal and theoretical basis,but also is the need to regulates the discretion of administrative procedures,the need to conform the diversification of the legal consequences of administrative procedure problems,the need to protect people’s lawful rights and interests,the need to build rule of law government and service-oriented government.Thirdly,in the empirical investigation of the judicial review of administrative procedure flaws,the article first sorts out and summarizes its manifestations according to the type of procedure.Then,the article analysis the applicable reasons,the handling methods,the legal consequences,Overall grasp the problems and disputes in the judicial review of administrative procedure flaws.Finally,in order to guarantee the smooth running of the judicial review of administrative procedure flaws,improve the relevant procedural system,the article puts forward the following points:The Startup procedure include Court ex officio active review or request by administrative counterpart;the handling of administrative procedure flaws include "zhi-zheng" and judicial advice;If reconsideration agency determines the former administrative action have administrative procedure flaws,the reconsideration did not change the former administrative action.After entering the judicial review stage,the court shall review the both.