中国行政行为程序瑕疵的“指正”研究

Abstract

“Correction” as a method for judicial organs to solve certain administrative procedure flaws, is the court’s flexible handling of administrative conduct procedure flaws ，beyond the scope of legality review authority, which has been generally applied in judicial practice. However, due to the lack of uniform judgment standards and standards for administrative process defects, and the lack of “correction” legislation, the logical path for the courts to make corrections is often that the program defects do not affect the content of the administrative entity, nor infringe on the legitimate rights and interests of interested parties. Although the new “Administrative Proceedings Law” applicable interpretations issued in 2018 further clarified the “minor procedural violations”, the provisions of the “important procedural rights” still cannot solve the uncertainty of the standard of procedural defects, which also reveals the current The “Administrative Procedure Law” is a serious deficiency in reversing the legal consequences of defects in administrative procedures through the provision of judgment methods. Therefore, in this paper, facing the application of “correction” in judicial practice, Bridging the long-term alienation between norms and practice, legislation and theory for a long time, solving the vague problem of the review standards of procedural defects caused by the lack of a unified administrative procedural code, and clearly taking the protection of the procedural rights of relatives as the judicial review standards of procedural defects importance.