Abstract
When laws, regulations, and rules do not provide clear process requirements for administrative organs, can the judiciary apply the due process principle in reviewing the legality of administrative acts? If so, how does the judiciary apply such a principle? Answers to these two questions directly reflect the judiciary’s actual functions in contemporary China. By statistically analyzing the legal bases invoked in the administrative rulings in Selections from People’s Court Cases and presenting more than ten representative cases concerning administrative process, as well as interviews with judges, this article reviews the development of the due process principle in Chinese judicial practice. Over a period of more than ten years, “violation of statutory process” has become a crucial basis for the judicial review of administrative acts; and judicial awareness and confidence of the due process principle’s application has also been strengthened. Despite its limited power, the Chinese judiciary has demonstrated its activist stance and potential in upholding justice and developing law. Judges’ conception of due process has been jointly shaped by various extra-statutory factors, such as scholars’ introduction and advocacy, standard legislations, legal precedents and the government’s emphasis on law-based administration. These factors have enhanced the legitimacy of judges’ application of the due process principle in rulings as well. However, due to a lack of judicial authority and respect for legal precedents, the judiciary’s innovations in individual cases cannot yet yield a nationwide impact. Nonetheless, innovative rulings may still have ripple effects on similar cases in the future. This fact suggests that legal development in contemporary China happens in a number of different ways, some of which have yet to be fully appreciated or explored.