論正當(dāng)程序視角下的行政程序違法
發(fā)布時間：2019-07-10 14:52
【摘要】：隨著我國法學(xué)理論的不斷進(jìn)步以及社會實踐的快速發(fā)展，行政程序違法的定義與具體內(nèi)容也隨著社會的發(fā)展和現(xiàn)實需求而逐步擴充、完善。《行政訴訟法》剛剛于1990年實施時，行政機關(guān)違反法定程序的行為則稱之為“行政程序違法”。也就是指行政機關(guān)在行使其行政職權(quán)時，在形式、時限、手續(xù)、步驟等方面違反了相關(guān)法律法規(guī)。但是這條規(guī)定在法律實踐過程中逐漸體現(xiàn)出其本身的不完善性，而國外的先進(jìn)法學(xué)理論對于行政程序違法和正當(dāng)程序原則有較完善的規(guī)定。因此隨著正當(dāng)法律程序逐漸引入我國，行政程序違法本身也在發(fā)生著變化：從內(nèi)涵上看，“此種形式的違法，既指行政機關(guān)在行使其權(quán)力的過程中，違反了相應(yīng)的法定程序規(guī)則；同時，也指行政機關(guān)在行使其權(quán)力的過程中，違反了正當(dāng)程序原則。因此，不管是違反了正當(dāng)程序原則還是違反了法定程序規(guī)則，均屬于程序違法范疇。”①所以，在筆者看來，關(guān)于正當(dāng)程序原則的討論和研究不單是行政訴訟法理論研究的需求，同時對于我國依法治國，依法行政也是具有很深的現(xiàn)實意義。 在本文中，筆者將通過四個部分闡述和探討正當(dāng)程序視角下的行政程序違法。首先，在第一部分中，筆者主要定義行政程序以及行政程序違法的概念，并對它們進(jìn)行了解釋。其中，所謂“行政程序”，主要是指行政機關(guān)在行使行政職權(quán)時應(yīng)當(dāng)要遵守的法定程序。而“法定程序”即為法律法規(guī)和其他規(guī)范性文件中，，對行政程序所作的具體規(guī)定。通過以上兩個基本概念的闡述，進(jìn)而引出“行政程序違法”的范疇，并著重說明此項違法的定義不應(yīng)僅指法定程序的違反，同時，正當(dāng)程序的違反也應(yīng)包括在內(nèi)。第二部分將是本文的重點。會結(jié)合我國實際情況與法律實踐，探究我國在對行政程序違法的認(rèn)定中，除了違反法定程序之外，是否還應(yīng)該增加違反正當(dāng)程序。第三部分從理論與實踐兩個方面具體闡述增加后的重大意義。文章的第四部分將著重闡述筆者對于行政程序違法具體實施中的不足與完善建議。
[Abstract]:With the continuous progress of legal theory and the rapid development of social practice in our country, the definition and concrete content of administrative procedure violations are gradually expanded and perfected with the development of society and practical needs. When the Administrative procedure Law was implemented in 1990, the violation of legal procedures by administrative organs was called "administrative procedure violations". That is to say, when exercising its administrative functions and powers, the administrative organs violate the relevant laws and regulations in terms of form, time limit, formalities, steps and so on. However, this provision gradually reflects its own imperfections in the process of legal practice, while the advanced legal theory in foreign countries has more perfect provisions on the principles of administrative procedure violations and due process. Therefore, with the gradual introduction of due process of law into our country, the illegal administrative procedure itself is changing: from the connotation point of view, "this form of illegality means that the administrative organ violates the corresponding legal procedural rules in the process of exercising its power; at the same time, it also means that the administrative organ violates the principle of due process in the process of exercising its power. Therefore, whether it violates the principle of due process or violates the rules of legal procedure, it belongs to the category of procedural violations. "therefore, in the author's opinion, the discussion and research on the principle of due process is not only the demand of the theoretical research of administrative procedure law, but also has deep practical significance for our country to govern the country according to law and administration according to law. In this paper, the author will explain and discuss the illegal administrative procedure from the perspective of due process through four parts. First of all, in the first part, the author mainly defines the concept of administrative procedure and administrative procedure illegality, and explains them. Among them, the so-called "administrative procedure" mainly refers to the legal procedures that administrative organs should abide by in the exercise of administrative functions and powers. The legal procedure is the specific stipulation of the administrative procedure in the laws and regulations and other normative documents. Through the above two basic concepts, this paper leads to the category of "administrative procedure violation", and emphasizes that the definition of this violation should not only refer to the violation of legal procedure, but also include the violation of due process. The second part will be the focus of this paper. Combined with the actual situation and legal practice of our country, this paper probes into whether the violation of due process should be increased in addition to violating the legal procedure in the cognizance of the violation of the administrative procedure in our country. The third part expounds the significance of the increase from two aspects of theory and practice. The fourth part of the article will focus on the author of the administrative procedures illegal implementation of the shortcomings and improvement suggestions.
【學(xué)位授予單位】：中國社會科學(xué)院研究生院
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2014
【分類號】：D925.3
本文編號：2512669
[Abstract]:With the continuous progress of legal theory and the rapid development of social practice in our country, the definition and concrete content of administrative procedure violations are gradually expanded and perfected with the development of society and practical needs. When the Administrative procedure Law was implemented in 1990, the violation of legal procedures by administrative organs was called "administrative procedure violations". That is to say, when exercising its administrative functions and powers, the administrative organs violate the relevant laws and regulations in terms of form, time limit, formalities, steps and so on. However, this provision gradually reflects its own imperfections in the process of legal practice, while the advanced legal theory in foreign countries has more perfect provisions on the principles of administrative procedure violations and due process. Therefore, with the gradual introduction of due process of law into our country, the illegal administrative procedure itself is changing: from the connotation point of view, "this form of illegality means that the administrative organ violates the corresponding legal procedural rules in the process of exercising its power; at the same time, it also means that the administrative organ violates the principle of due process in the process of exercising its power. Therefore, whether it violates the principle of due process or violates the rules of legal procedure, it belongs to the category of procedural violations. "therefore, in the author's opinion, the discussion and research on the principle of due process is not only the demand of the theoretical research of administrative procedure law, but also has deep practical significance for our country to govern the country according to law and administration according to law. In this paper, the author will explain and discuss the illegal administrative procedure from the perspective of due process through four parts. First of all, in the first part, the author mainly defines the concept of administrative procedure and administrative procedure illegality, and explains them. Among them, the so-called "administrative procedure" mainly refers to the legal procedures that administrative organs should abide by in the exercise of administrative functions and powers. The legal procedure is the specific stipulation of the administrative procedure in the laws and regulations and other normative documents. Through the above two basic concepts, this paper leads to the category of "administrative procedure violation", and emphasizes that the definition of this violation should not only refer to the violation of legal procedure, but also include the violation of due process. The second part will be the focus of this paper. Combined with the actual situation and legal practice of our country, this paper probes into whether the violation of due process should be increased in addition to violating the legal procedure in the cognizance of the violation of the administrative procedure in our country. The third part expounds the significance of the increase from two aspects of theory and practice. The fourth part of the article will focus on the author of the administrative procedures illegal implementation of the shortcomings and improvement suggestions.
【學(xué)位授予單位】：中國社會科學(xué)院研究生院
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2014
【分類號】：D925.3
【參考文獻(xiàn)】
相關(guān)期刊論文 前3條
1 湯維建;;關(guān)于程序正義的若干思考[J];法學(xué)家;2000年06期
2 陳瑞華;程序價值理論的四個模式[J];中外法學(xué);1996年02期
3 楊偉東;行政程序違法的法律后果及其責(zé)任[J];政法論壇;2005年04期
本文編號：2512669
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