| In 2014,the Administrative Procedure Law added the review standard of "minor procedural violations",which broke the monopoly of the review standard of "violation of statutory procedures" in the judicial review of administrative procedures and formed a good institutional effect.However,the theoretical community has not yet formed a consensus on the connotation of "minor procedural violations",and the practical community has not yet formed a unified adjudication rule for the determination of "minor procedural violations",and there are still many confusions in judicial practice.In view of this,this paper,on the premise of clarifying the connotation of "minor procedural violations",sorts out the dilemma and reasons of judicial practice through case studies,and then proposes an optimal path for the judicial determination of "minor procedural violations".The first part clarifies the institutional value and normative connotation of "minor procedural violations".From the relationship between"minor procedural violations" and"violation of legal procedures",the latter is not a superior concept of the former,but an independent standard of review,representing different degrees of procedural violations respectively.From the "minor procedural violations" and "no actual impact on the plaintiffs legal rights"relationship,the former and the latter respectively from the procedural independence value and procedural tool value to evaluate the administrative procedures.Therefore,"minor procedural violations" refers to those procedural violations that do not produce substantial damage to the plaintiffs important procedural rights and substantive rights.In addition,based on the protection of the basic rights of citizens and the need to regulate the administrative power,the constitution should be included in the scope of the"law" of "minor procedural violations".The second part is a summary of the practical types of "minor procedural violations".From the macroscopic viewpoint,"minor procedural violations" are recognized for various reasons,and the number of cases is expanding,and most of the cases occur in certain specific areas.From a micro perspective,there are four main types of "minor procedural violations":minor violations of processing deadlines;minor violations of service;minor violations of steps;minor violations of investigation and evidence collection,in addition to the existence of other types of failure to stamp the unit seal,not in accordance with the legal form.The third part is to analyze the dilemma and reasons for the judicial determination of"minor procedural violations".First,the confusion of the procedural review standard system makes the boundary between different review standards blurred,coupled with the abstract nature of the elements of "minor procedural violations",making it difficult for judges to distinguish "minor procedural violations" from "Violation of legal procedures".Second,due to the legal nature of "procedural defects" is highly controversial,the phenomenon of"procedural defects" interfering with "minor procedural violations" is common in practice.Thirdly,under the influence of the pragmatism of "substantive rather than procedural",judges often ignore the element of "important procedural rights without substantial damage",and find that the administrative act constitutes "minor procedural violations" only on the basis that the substantive rights are not damaged.The fourth part is based on the current administrative litigation system reality,and proposes the natural path to improve the judicial determination of "minor procedural violations".First of all,the construction of "serious procedural violations" and "minor procedural violations" binary standard system.Secondly,refining the elements of "minor procedural violations" to make it more operable.Thirdly,recognizing the reasonableness of the existence of "procedural defects" in the narrow sense.Finally,we should improve the supporting mechanism for judicial determination,including the construction of remedial judgments,the reference function of guiding cases,and the strengthening of the reasoning of adjudication documents. |
