On the administrative trial on the specific application of the principles of due process

1985-2009 20 years, the people's court <<Gazette>> A total of 80 pieces published in the typical administrative cases, where due process of administrative cases involving 12 pieces. [1] Although these cases all involved can not be justified process cases, but will miss some of a "milestone" in the value of the case. However, these cases can still be summarized from the macro administrative due process in judicial practice in the Development process.

First, from the unconscious to the conscious use of

In "Chen Yingchun case", although the judge found the defendant's asylum review "violation of legal procedures," but, in fact, review of the implementation process on the host was not clear legal provisions. So, I think, support the judge found the defendant not to plaintiff to produce <<host review notice>> so in violation of "due process" grounds may be just the simple idea of justice program, the defendant fails to perform this most basic implementation of asylum procedures or procedures to conduct the review must be wrong, as What the defendant violated "due process", then do not express. So, we can conclude that the judge in the case of "in the implementation of the procedure is illegal," the PS is the unconscious idea of due process apply. This is because in the 90 century is not developed against the background of administrative Law, the judge of the lack of basic understanding of due process, let alone make a decision based on the principles of due process. In fact, even "TIAN case", from the judge to < <Gazette>> editor of due process are poorly understood, even ignorant, but also out of the question consciously applied. However, to the "Chang Cheng-yin case", the judge made it clear that due process is the main reason for revocation decision. [ 2] In other words, the judge applies the principle of due process has evolved into a conscious act. Although we were unable to find direct evidence that happened, "Zhang Cheng silver case" after "Yimin Company Case," "Miss Tingzuo case", the contractor The judge applied the principles of due process is a conscious act. However, the judgments in these two cases, when judges are blunt reasoning "in accordance with due process" or "based on the principle of due process." at least shows the judge for the due process application of the principle is no longer "secretive", but directly as the basis and reasons for the referee. This represents a position and philosophy, "a symbol of the judge due process principles of due process awareness and confidence in the use of enhanced also reflects the concept of due process in the legal professional community has made a preliminary but relatively broad consensus. "[3] In" <Administrative Procedure Act "> put away is still not on the circumstances, the judge did not blindly waiting for legislation, but Through the Development of legal judgments, directly applicable in the administrative trial, due process principles.


Second, the referee rules / System in

On the basic principles of proper administrative procedures there are different views in the academic community. Some people think that the basic principles of due process procedures should be legal and fair principles. [4] Some people think that due process procedures should be neutral, procedural justice, procedural rationality, process economy. [ 5] It was the principle that the executive may be specific to export just to avoid favoritism, and administration of public administration in the three basic elements. [6] However, in judicial practice, judges live with one case, the general outline of the due process "look "such as this, the complainant and the defense, and other reasons. The contents scattered, not only reflects the value of the principles of due process, and continuously enrich and develop the principles of due process of the connotation and extension of this principle to make more complete and specific [7].


1. Informed and Information. According to the principles of due process requirements, the pArties have the right to read the instruments, the right to its stakeholders informed of the facts and decisions. In "Chen Yingchun case", the judge pointed out that the implementation of resettlement review of the defendant, did not produce the relevant legal instruments that the decision did not inform the pArties of the content and basis. in the "case of Lanzhou, the Ministry of Changde Materials Development", the Court reaffirmed the executive's obligation to inform the interested pArties and concluded that non-delivery of administrative and clerical government in violation of statutory procedures. In the "land Tingzuo case" the Court held that the pArties will assess the report of interest served to facilitate the timely submission of the pArties, applying the principles of due process re-assessment is the proper meaning, breach of this obligation constitutes a violation of legal procedures should be abolished . At this point, inform and Information disclosure in judicial decisions have been identified as one of the principles of due process.


2. Statements, defense, and a hearing. In accordance with the principles of due process requirements, the executive decision should be to listen to the views of the parties, the parties have stated, the right to defend themselves. Informed and timely disclosure to allow the parties to understand and grasp the specific content of administrative action, to ensure that parties timely presentation and defense. In "TIAN case", the judge considered, Beijing University of Technology does not "directly against a person declared to the treatment, service, allowing himself to be handled to defend themselves," "neglect of the parties to plead rights ", and thus its administration behavior is not legitimate. In" Song Lili case ", the judge pointed out that the executive authorities in an administrative act, not to allow any interested party" on the statements and arguments to be controversial issues, lack of impartiality, " and to make withdrawal decision, according to. In "Zhang Cheng-yin case", the second-instance court directly to the "listened to the views of interested parties" as one of the requirements of due process principles, the principle of curing for the content of due process. should be emphasized that the hearing is statements and arguments of the parties the right to an extension of its core is "give the person the fact that the views on important opportunities" [8]. or a more formal "statements and arguments." Although the above case 1 to case 8 is not involved " hearing "requirement, but that does not mean it as meaning the absence of due process principles.


3. Reasons. The reasons is the so-called "administrative body making the relative negative impact on the legitimate rights and interests of the administrative act, except by special legal provisions, you must explain the administrative counterpart to make the factual elements of the act , as well as the legal basis for consideration when discretion and public policy factors. "[9] in the" case of Lanzhou, the Ministry of Changde Materials Development ", the court held that appellee city government in the administrative decision" does not lead to specific provisions of applicable "reasoning is not sufficient, in violation of statutory procedures. In" Haiya Park Management in case ", the judge with a series of three" as "through the layers of assumptions and progressive manner, discusses the executive fails to perform reasons obligations, breach of statutory procedures.


4. To avoid favoritism. To avoid favoritism, the principle of "administrative body in the administrative procedures required for the course participants should be between the parties to maintain a detached and impartial attitude and position, shall be subjected to the influence of various interest or favoritism." [10] in the "Yimin company case", the judge considered the first batch of appellee City Planning Commission, the text remained in force, the direct release <<bidding program>> in violation of statutory procedures. I believe that, in the case in the executive branch as decision makers are not just based on the position of an administrative act impartially, just as a violation of the obligation.


As mentioned earlier, confined to <<Gazette>> Case selection standards high, and little scope restrictions, the case did not fully reflect the specific content of principles of due process. However, the <<Gazette>> Case has a guiding and "weak coercive force" and therefore, the principle of due process to fixed content. Of course, at this stage (at least for some time, application of the principle of due process is still in need "publicity" and "forward" stage, still adhere to the principles of due process "violation of legal procedures," the standard, that "Laws, regulations and rules of the program as 'due process', in the absence of 'due process' cases, it can introduce the theory of due process auxiliary judgments." Meanwhile, to consider "whether the damage to the legitimate interests of the administrative counterpart" of factors. [11]

Links to Research Papers Download http://www.hi138.com three methods for

1. Follow the former case - the "typical case" guide. Since China is not a state case Law, therefore, we can not read between the lines in the Article to the judge to find the "precedent" or "before the case" to follow. But this does not mean that as a typical case of <<bulletin>> case, the subsequent trial of similar cases does not produce any effect. the Supreme Court by publishing <<bulletin>> form to the courts, announced to the public "typical case" reflects the The Supreme Court on legal issues of a basic attitude of the courts have "reference and guidance" role. At the same time, the judge can also "convinced that a typical case of cognitive general rules established by the most appropriate treatment in case of formed effectiveness of a compliance "[12]. In my view, as a" typical case "<<bulletin>> case has no legal binding force, but fact of the binding, especially in the case of some difficult complex cases the existence of legal loopholes, similar to <<bulletin>> Case referees often become a judge, "based on" one, or that <<Gazette>> case instruction judge referee. This effect mainly reflected in the judges "typical cases "theory of inheritance and Development of referees. to due process, for example, in the" Chen Yingchun case ", the judge only vague that" in implementing the procedure is illegal, "" TIAN case, "the ruling made clear that procedural justice Concept: For the administrative body, the due process is not only a moral constraint, but by its legal obligations. breach of this obligation, that constitutes illegal administrative acts. As a result, the judge set for the administrative authorities acts of due process rules. The case for the development of principles of due process is undoubtedly a huge boost in its influence, Wang Chunming v. Southern Institute of Metallurgy degree certificate is not granted the case [13], Wang Changbin v. Wuhan University of Technology case of refusal to issue degree certificates [14 ], because similar case, the judge made a similar decision. through the "Labor and Employment Authority Pingshan case" and "Song Lili case" interpretation of a series of cases, supplement and perfect the principles of due process in the end, "Zhang Cheng silver case" into the judicial practice in the real and the "Yimin Firm", "Chen Ting Zuo case" that followed.


2. Analogy - "<Administrative Punishment Law"> analogy about the value of due process requirements. <<Administrative Punishment Law "> Article 6:" Citizens, legal persons or other organizations for the executive administrative punishment given the right to state power, defend themselves, "the contents of the due process of law. I believe that," <Administrative Punishment Law "> The value of the relevant provisions of due process is not limited class of cases, the administrative penalty is directly applicable, should also include the value of analogy, namely, When the judge met the legal loopholes, and that the disputed case and the procedural requirements of administrative punishment ���� similar nature, can the law shall apply by analogy to fill legal loopholes. by analogy to the general analogy and case are two aspects of analogy. The so-called general analogy is decision in the case of the most typical reasons for analysis, and summarized, the general application of the law out of principle. However, the overall analogy usually only in very rare cases, be used. the so-called cases of analogy, the judge in determining the disputed cases and the type of legal case or by analogy with the similar nature of the object, and in accordance with the Administrative Punishment Law norms of due process case of intention, the legal norms applicable to the disputed cases of analogy to fill loopholes in the law. Based on this, some people think that "TIAN case", the Court decision law school drop-out process, you can analogy <<Administrative Punishment Law "> forty-second Article no need to invoke" the full protection of the clients rights and interests of "the principles of non-administrative law judge basis. [15] In this regard, I agree. in the Administrative Procedure Act not established before the implementation, "<Administrative Punishment Law"> the relevant provisions of due process, can be applied to other administrative areas of analogy to fill legal loopholes. This is because the analogy is not confined to private law areas, building on the principle of equality based on the analogy with the law applicable to the same value, then you can use the Administrative Law [16].




Notes:
[1] Although the direct use of ruling on the principle of due process very few cases, but some decision is with reference to some decision is to use the concept of due process, and some decision is directly invoked the Administrative Punishment Law, the provisions related to due process , were this a case of administrative due process. Specifically see details.

[2] of the above cases, the judge's perception of due process and apply, please see He Haibo: <<judicial decisions in the principles of due process> ", in <<Law Research"> 2009 1.

[3] He Haibo: <<judicial decisions in the due process Policy "", in <<Law Research "> 2009 1.

[4] Hu Jianmiao: <<Administrative Law>> Law Press, 1998, p. 410.

[5] Xi-Zn: <<process of justice and due process - the rule of law in the administrative procedures Research ">, PhD thesis, Peking University Law School, 1999 Session, p. 86.

[6] Zhou Youyong: <<administrative law due process Policy ">. Containing <" China SOCIAL SCIENCES "" -2004 4.

[7] where only the direct or indirect application of due process principles <<bulletin>> case analysis, classification, does not include direct invoke <<Administrative Punishment Law "> on the due process provisions of <<bulletin>> case.

[8] Luo Chuanxian: <<Basic Theory of the Administrative Procedure Act>> Taiwan Sage Publishing Company 1993, p. 229.

[9] Ma Huaide: <<Administrative Law and Administrative Procedure Law>>, China Legal Press, 2000, p. 241.

[10] Zhou Youyong: <<administrative law due process Policy ">. Containing <" China SOCIAL SCIENCES "" -2004 4.

[11] Zhang Jian Sheng: <<for breach of statutory procedures for judicial review - the typical cases announced by the Supreme Court (1985-2008 as an example> ", in <<Law Research"> 2009 2.

[12] Zhang Jian Sheng: <<as an informal source of law on Administrative Law "typical case"> ", in <<Zhejiang University (Humanities and Social Science Edition>>, 2007 3.

[13] High Court of Jiangxi Province (2000 words Gan line 16 of the final administrative judgments.

[14] Guo Jiaxuan, Zhan Guoqiang: <<"cheating" is not to graduate, the Court found this law> ", in http://edu.sina.com.cn/l/2002-05-03/23871.html/ July 20, 2010 visit
[15] Wang Xu: <"Rules of the analogy with the things" The Nature ", in <<People's Court News>> September 19, 2005 Eighth Edition.

[16] The application of administrative law theory on the basis of analogy, see Zhigang: <<On the analogy in the system of Administrative Law> ", in <" Modern Law>> 2008 No. 6. Links to free papers download http://www.hi138.com