司法判决中的正当程序原则

司法判决中的正当程序原则

Some Indications of Due Process Principlein Judicial Judgments of China

    期刊名称：《法学研究》
    期刊年份：
    作者：何海波
    单位：清华大学法学院
    中文关键词：行政诉讼;正当程序原则;司法能动主义;法律发展
    英文关键词：administrative litigation;due process principle;judicial activism;development of law
    中文摘要：
    在法律、法规和规章对行政机关应当遵循的程序没有明确规定的情况下，法院能否根据正当程序原则去审查行政行为的合法性，是观察当前中国司法的实际职能和法律发展的一个窗口。通过统计《人民法院案例选》上行政判决所用的法律依据，分析田永案件、刘燕文案件、张成银案件等十余个有关行政程序的代表性案例，结合对法官所做的访谈，可以发现，在过去十多年中，正当程序原则在司法审查中获得了比较广泛的认可，开始成为中国法律的一部分。这一事实显示了中国法院在相对局促的空间里的能动主义立场，以及由个案判决所推动的一种法律发展的特殊路径。
    英文摘要：
    The concept of due process, inspired by Anglo-American law, has become well knew to the Chinese legal circles and been adopted in a number of legislations. However, when laws, regulations, and rules do not provide clear process requirements for administrative organs, it is still uncertain whether the judiciary can apply the due process principle in reviewing the legality of administrative acts or not, given that the Administrative Litigation Law 1989 stipulates that an administrative act in violation of statutory process should be void. By statistically analyzing the legal basis invoked in the administrative rulings in law reports and analyzing more than ten representative cases concerning administrative process, as well as the interviews with judges, this article reviews the development of the due process principle in judicial practice of China.Over a period of more than ten years, judicial awareness and confidence of the due process principle has been strengthened, and the legitimacy of judges’ application of this principle has been enhanced as well. The “violation of statutory process” provision, which has become a crucial basis for judicial review of administrative acts, provides a channel for the due process principle to be introduced into judicial practice. Judges’ conception of due process has also been jointly shaped by various extra-statutory factors, such as scholars’ introduction and advocacy, standard legislations, judicial precedents and the government’s emphasis on law-based administration. Through the ripple effects of innovative rulings on similar cases, the judicial application of due process principle has been widely acknowledged and the principle begins to be incorporated into law. This fact suggests that, even despite its limited power, Chinese judiciary has demonstrated its activist stance and potential in upholding justice and developing law. However, due to the lack of judicial authority and respect for judicial precedents, judiciary innovations in individual cases cannot yet yield a predictable, nationwide impact. The dawn of the due process principle has come, but there will be a significant period of time before the principle reaches full ascendancy.
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