| According to the Administrative Litigation Law in 1989, violation of legal process is one of the legal grounds for courts to annul a specific administrative act. As to the interpretation of“legal process”, there are four theories. One theory argues that, only laws and regulations of State Council can stipulate legal process. Another thinks that regulations of local governments can also stipulate legal process. The third theory argues that legal process can also come from the Constitution Law, but the fourth theory thinks that legal process means significant process, no matter where it originates. As to the legal effect of a specific administrative act violating legal process, there are also three different views, that is, the theory of invalidity, the theory of voidable and the theory of distinction. In perspective of no evitable corresponding relations between process violation and substantive disposal,“the theory of distinction”distinguishes different situations of process violation, which means that the legal effect of process violation is not the same and different disposals should be done according to concrete situations.In the classic cases relating to the violation of legal process in the Bulletin of the Supreme People’s Court, there is relatively a large gap between the reasons and texts of judgments and the stipulations and interpretations of the Administrative Litigation Law. In several classic cases, courts depend on“due process”for judgment when no legal basis can be pursuant to. Such practices have played a positive role in promoting the idea of due process in administrative organs. However, the factual effect of the classic cases as“reference”or“guidance”may be extremely limited. Normative meaning of“violation of legal process”is often uncertain, and it will not be ascertained until the balance of interests in cases. According to the theory interpretations and judicial practices, this article thinks that, legal process can be stipulated by laws as well as regulations of State Council and of local governments. Where there is no such legal process, courts can resort to“due process”for judgment. When a specific administrative act violates legal process, courts should mainly consider whether the administrative act has damaged the administrative counterpart’s substantial legal interests, and distinguish various circumstances to annul the administrative act, confirm the administrative act or dismiss the claim. |
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