Judicial Review Of "Minor Procedural Violations" Of Administrative Acts

Even though article 96 of the interpretation of the Supreme People’s Court on the application of the administrative procedure law in 2018 adopts the method of "reverse exclusion + positive identification" to objectify the "minor procedural violation",there is still no unified judgment standard for the "minor procedural violation".Since the implementation of the new administrative procedure law,due to the unclear understanding of the relevant provisions of "minor procedural violation" in Item 2,paragraph 1,article 74 of the administrative procedure law,it has caused confusion in the application of judicial practice,difficulty in reasoning judgment documents,and different judgments in the same case.Therefore,in order to standardize the administrative procedures of administrative organs and deal with the complex and diverse problems in judicial practice,the research on the judicial review of minor violations of administrative acts and procedures is indispensable.To clearly understand what is a minor violation of procedure,we must first define the scope of "law","minor","important procedural rights" and "substantial damage".Therefore,this paper starts from the basic theory,combines the relevant basic concepts,the comparison of the relevant theories of minor violation of procedure and the existing identification standards,and uses text analysis,empirical analysis and other research methods to study the judicial practice of minor violations of administrative procedure.Based on 1526 judgment samples,ten common forms of minor procedural violations are summarized and analyzed,including minor violations of processing time limit,minor violations of service procedures,minor violations of notification procedures,minor violations of notification procedures,missing or reversed steps of administrative procedures,clerical errors,minor violations of review procedures,minor violations of hearing procedures,non-compliance of the identity and number of law enforcement personnel and minor violations of other procedures,Find out the problems existing in the judicial practice of minor procedural violations,such as the false standard of "minor procedural violations" and lack of reasoning,different judgments in the same case,limited regulation of administrative organs,etc.,analyze the reasons behind the problems in detail.Finally,explore the suggestions to improve the judicial review of minor violations of administrative procedures,such as legislation to standardize the reference situation of "minor violations of procedures" and unify the way of judgment;Reasonably allocate the burden of proof of compensation and clarify the adverse consequences of the failure of administrative organs;Respect the independence of the standard of "minor procedural violation",adhere to the position of "dichotomy",and strictly apply the standard of "minor procedural violation";Learn from foreign advanced experience,build an administrative correction system in line with China’s national conditions,and put forward suggestions on standardizing the correction behavior,so as to promote the judicial review of minor violations of administrative behavior procedures in China.