行政程序瑕疵的三分法與司法審查

The Trichotomy of Administrative Procedure Defect and Judicial Review

在行政程序法典闕如的情形下，我國新《行政訴訟法》擔綱了規範行政程序瑕疵類型的重任。新法對行政程序瑕疵採取“違反法定程序”與“程序輕微違法”的二分法，忽略了司法實踐中大量存在的第三種類型：不被撤銷或確認違法，而是由法院予以指正並判決駁回訴訟請求的“狹義程序瑕疵”。在引入“狹義程序瑕疵”而形成三分法後，有必要在制度層面增設“忽略不計（視為合法）”的法律後果。同時，基於完善行政程序瑕疵的判決方式考慮，應排除撤銷判決中部分撤銷之適用、質疑責令重作判決不受限制之正當性、反對增設補正判決作為確認違法判決之從判決，還應防止法院因寬泛認定“狹義程序瑕疵”而大量作出駁回訴訟請求判決的現象。為此，應以“違反程度輕微且行政機關自行實施了有意義的補正”作為適用駁回判決的前提。

Under the background that the administrative procedure code is absent, the types of administrative procedure defect are regulated by the new Administrative Litigation Law of the People's Republic of China. The new Administrative Litigation Law divides administrative procedure defects into 'the violation of legal procedures' and 'procedural minor illegality' , but seriously ignores the third type which has a large number in the judicial practice: the claims pointed out and dismissed by the court instead of being revoked or confirmed as illegality. After introducing 'the narrow procedural defect' so as to form trichotomy, it is necessary to add the legal consequence of 'negligible (as lawful as regarded) ' at the institutional level. Meanwhile, in order to optimize the decisions for administrative procedure defecst, besides excluding the application of paxt-cancellation judgment, querying the legitimacy of unlimited remaking judgment and opposing to add supplement judgment as the auxiliary judgment of illegal affirmation judgment, we should prevent the court from frequently making claim-dismissed judgment based on recognizing 'the narrow procedural defect' widely. Therefore, we should make the prerequisite of applying claim-dismissed judgment as both following ones: the degree of violation is minor; the administrative organ implements a meaningful correction actively.