行政行为的程序正当性审视

Procedural Due Process Review of Administrative Acts

摘要: 自正当程序原则在行政司法实践中得到广泛应用以来，行政法定原则与正当程序原则之间的冲突问题也日益显现。然而我国受到未制订出《行政程序法》等多方面因素的限制，对于行政行为的程序正当性问题认定仍然较为模糊。本文搜集了程序正当相关案例，发现主要纠纷矛盾源于事前、事中、事后三大环节，因此选取有关事前告知、行政撤销事中未听取当事人申辩与高校撤销学位事后救济的司法案例进行分析，在此基础上结合目前立法现状与学者观点，运用文献分析法、案例分析法与比较分析法等研究方法，试图总结出三阶段各自的共性规则，并提出缓解行政行为中行政法定原则与正当程序原则矛盾的相关建议，希望能为行政行为的程序制定与司法实践提供新的思路。

Abstract: Since the principle of due process has been widely applied in administrative and judicial practice, the conflict between the principles of administrative legality and the principle of due process has become increasingly apparent. However, China has not been formulated by the administrative procedure law and other factors, so the procedural due process of administrative action is still relatively vague. This paper collects relevant cases of procedural due process, and finds that the main disputes and conflicts originate from the three major aspects of the prior, during and after the incident, so it selects the judicial cases about the prior notice, administrative revocation without hearing the party’s defence in the incident, and the university revocation of the degree of the judicial case of the aftermath of the relief to analyse. Building on this, combining the current legislative situation and scholarly viewpoints, utilizing research methods such as literature analysis, case analysis, and comparative analysis, the aim is to summarize the common rules of each of the three stages, and to propose relevant suggestions for alleviating the conflict between the principles of administrative legality and due process in administrative actions. It is hoped that this can provide new ideas for the formulation of administrative procedures and judicial practices.