作者：周佑勇
作者介绍：东南大学法学院教授，博士生导师
出版日期：2019年6月9日
内容提要 正当程序作为行政法上的一项基本原则，已得到我国理论界的普遍认同。然而理论的发展并不意味着法院在司法审查中可以直接适用正当程序原则判案。面对法无明文规定时，法院在司法裁判中适用正当程序原则的正当性难题在所难免，且经常性地面临着审查程度的困境。但是，透过从“田永案”“张成银案”到新近“于艳茹案”等典型个案裁判的观察，可以看到近30年来，通过一次次司法判决的重大推动，正当程序原则在我国得以新的不断发展。不仅法院适用正当程序原则的正当性基础经由“程序法定”发展到“程序正义”的新表达，而且司法适用的程度也已从形式审查迈向实质审查，同时其适用方式也从单纯的“法官造法”步入案例指导制度，从而极大地推动了正当程序原则适用的制度化发展。
关键词 正当程序原则 正当性基础 司法审查程度 案例指导制度
Abstract: As a basic principle in the Administrative Law, due process has been broadly recognized by the theory field in China. However, it does not mean that courts could apply the principle directly in the judicial review to make judgments. In the face of the absence of explicit provisions, the legitimacy problem of applying the due process principle in the judicial judgment is inevitable, and the dilemma of the degree of censorship emerges frequently. However, by reviewing the typical cases such as Tian Yong Case, Zhang Chengyin Case, Yu Yanru Case, etc., it is clear that the due process principle has been constantly developed and promoted by judicial decisions time and time again in the last 30 years. Not only does the legitimate foundation of applying the due process principle develop from legal procedure to procedural justice, but the degree of judicial application of due process principle is also developed from formal review to substantive review. At the same time, its application mode also marches toward the case guidance system from the simple judge-made law, so that the institutional development of the application of the due process principle has been promoted significantly.