作為主觀權利的程序公權

因受私法影響，公權論明顯帶有實體性特徵，這使公法上的程序權利自始就被歸入形式公權。相比實質公權，形式公權只是個人一種不完整的法地位，這種不完滿性又尤其表現於訴訟可能的欠缺。程序瑕疵的相對性使違反程序規範並不能成為個人行使撤銷請求權的獨立事由，程序權違反也唯有和實體權損害存在明確的違法性關聯時，才符合訴訟的權利侵害要件。但伴隨“經由程序的基本權利保障”的觀念興起以及歐盟法的作用輻射，德國法開始越來越多地承認絕對程序公權。絕對程序公權獨立於實體法規範之外，對此類程序條款的違反可單獨成為訴請撤銷行政行為的理由。但在行政訴訟作為主觀訴訟的定位不改變的前提下，絕對程序公權只是例外而非原則。對程序公權發展演替的體系梳理構成了對程序瑕疵司法審查的前理解，其不僅有助於澄清我們對於程序瑕疵司法審查的認知分歧，亦會將相關討論從現有的規範闡釋引向對程序公權本質的挖掘。

Due to the influence of private law, the theory of public rights originating from Germany has substantive characteristics, resulting in procedural public rights being classified as formal public rights. Compared to substantive public rights, formal public rights are only an incomplete legal status for individuals, and this incompleteness is particularly manifested in the possible lack of litigation. After World War II, due to the strengthening of the concept that administrative procedures only have service functions, procedural rights and substantive rights have been clearly distinguished and given different judicial remedies. The relative nature of procedural flaws makes violating procedural norms an independent cause for individuals to exercise their right to request revocation. Violation of procedural rights only meets the requirements for infringement of rights in litigation when there is a clear illegal relationship between it and damage to substantive rights. However, with the rise of the concept of“fundamental rights protection through procedures”and the radiation of EU law, German law has increasingly recognized absolute procedural public rights. The procedural flaws of absolute procedural public rights are independent of substantive law norms, and the violation of the procedural provisions can be a separate reason for requesting the revocation of administrative actions. There is no need to consider whether there is any harm to substantive rights. The systematic review of the development and succession of procedural public rights not only constitutes a preliminary understanding of the judicial review system for procedural flaws, but also helps to clarify the procedural public rights and thus shape a complete doctrine of procedural rights in public law.