论正当程序视角下的行政程序违法
发布时间：2019-07-10 14:52
【摘要】：随着我国法学理论的不断进步以及社会实践的快速发展，行政程序违法的定义与具体内容也随着社会的发展和现实需求而逐步扩充、完善。《行政诉讼法》刚刚于1990年实施时，行政机关违反法定程序的行为则称之为“行政程序违法”。也就是指行政机关在行使其行政职权时，在形式、时限、手续、步骤等方面违反了相关法律法规。但是这条规定在法律实践过程中逐渐体现出其本身的不完善性，而国外的先进法学理论对于行政程序违法和正当程序原则有较完善的规定。因此随着正当法律程序逐渐引入我国，行政程序违法本身也在发生着变化：从内涵上看，“此种形式的违法，既指行政机关在行使其权力的过程中，违反了相应的法定程序规则；同时，也指行政机关在行使其权力的过程中，违反了正当程序原则。因此，不管是违反了正当程序原则还是违反了法定程序规则，均属于程序违法范畴。”①所以，在笔者看来，关于正当程序原则的讨论和研究不单是行政诉讼法理论研究的需求，同时对于我国依法治国，依法行政也是具有很深的现实意义。 在本文中，笔者将通过四个部分阐述和探讨正当程序视角下的行政程序违法。首先，在第一部分中，笔者主要定义行政程序以及行政程序违法的概念，并对它们进行了解释。其中，所谓“行政程序”，主要是指行政机关在行使行政职权时应当要遵守的法定程序。而“法定程序”即为法律法规和其他规范性文件中，，对行政程序所作的具体规定。通过以上两个基本概念的阐述，进而引出“行政程序违法”的范畴，并着重说明此项违法的定义不应仅指法定程序的违反，同时，正当程序的违反也应包括在内。第二部分将是本文的重点。会结合我国实际情况与法律实践，探究我国在对行政程序违法的认定中，除了违反法定程序之外，是否还应该增加违反正当程序。第三部分从理论与实践两个方面具体阐述增加后的重大意义。文章的第四部分将着重阐述笔者对于行政程序违法具体实施中的不足与完善建议。
[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.
【学位授予单位】：中国社会科学院研究生院
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.3
本文编号：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.
【学位授予单位】：中国社会科学院研究生院
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.3
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本文编号：2512669
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