The nature and consequences of illegal procedures of audit institutions

The principle of legal procedure is an important principle that audit institutions must follow in their administration according to law. Audit procedure norms and audit entity norms have the same legal effect and status. Violation of procedural norms, like violation of substantive norms, will affect the effectiveness of auditing specific administrative acts. Therefore, in auditing law enforcement activities, audit institutions should strictly perform legal procedures, conscientiously implement the procedural provisions in relevant laws, regulations and rules, and should not emphasize entities over procedures, and think that procedural norms are dispensable.

I. About the audit procedure

Audit procedure refers to the legal order, time limit and formal system that audit institutions must follow in the audit process.

At present, there is no unified administrative procedure law in China, and administrative procedure norms are scattered in various separate laws and regulations. The Audit Law, the Regulations for the Implementation of the Audit Law and the Auditing Standards promulgated by the National Audit Office have made detailed provisions on the audit procedures. Among them, audit preparation stage, audit implementation stage and audit termination stage are three legal links of audit procedure. Audit institutions and auditors must strictly follow the relevant procedural provisions from the time they are delivered to audit notice to solicit the opinions of the audited entity, from the time when auditors evade to the time when they deliver the notice of hearing, and from the time when they review the audit report to the time when they make an audit decision.

At present, China has established a series of procedural legal systems to regulate specific administrative acts, and audit institutions at all levels should carry out audit law enforcement according to the procedures stipulated in the following systems. For example, the withdrawal system, appraisal system, explanation system, hearing system, notification system, collegial panel system, separation of trial and execution system, reconsideration system, judicial review system, sequence system, time limit system and so on.

Second, the manifestations of illegal audit procedures

According to the elements of administrative procedures, the procedural violations of audit institutions can be divided into four forms:

1. This step is illegal. Steps are an important element of the program, and any behavior must be carried out in accordance with legal steps. There are two main forms of step violation: one is to add legal steps at will. If the law clearly stipulates the steps of administrative behavior, and the administrative subject arbitrarily adds steps outside the law, it constitutes a step violation. The second is to reduce or omit legal steps. Reducing or omitting legal steps is the main performance and the most obvious step violation. For example, Article 42 of the Administrative Punishment Law stipulates that "before an administrative organ makes an administrative punishment such as ordering to stop production or business, revoking a license and a large fine, it shall inform the parties of the right to request a hearing; If a party requests a hearing, the administrative organ shall organize a hearing. " If the administrative organ fails to inform the parties of the right to request a hearing before making an administrative penalty, or if the parties request a hearing, the administrative organ makes an administrative penalty without organizing a hearing, which will lead to illegal steps. For example, some audit projects collect money from the audited units without issuing audit decisions; Some audit projects are not audited, and audit decisions are issued according to the oral collection agreement reached with the audited entity. These phenomena are a serious violation of procedure.

2. The way is illegal. In order to ensure the realization of administrative objectives, in many cases, the law clearly stipulates and requires the way of administrative behavior. As a procedural element, mode refers to the form of behavior. A certain behavior must be expressed in corresponding forms, such as written form and oral form. If an act is not carried out in the form prescribed by law, it is illegal. Some audit institutions have incomplete or incorrect audit decisions, that is, they inform the audited entity that the time limit for applying for reconsideration does not comply with the law, and set the time limit for audit administrative reconsideration as 15 days instead of 60 days as stipulated in the Administrative Reconsideration Law; Part of the informed reconsideration organ is wrong or the statutory reconsideration organ is omitted.

This order is illegal. The order of administrative procedure elements mainly refers to the order between various procedural steps, and administrative actions must be made in a certain order. As far as the administrative subject is concerned, when carrying out relevant law enforcement, it is necessary to show identity, explain reasons, take relevant measures, make administrative decisions, serve relevant decisions on the parties and inform them of their relevant rights. If this order is violated, the program will be illegal. For example, the Administrative Procedure Law stipulates that the defendant may not take evidence from the plaintiff himself after the administrative litigation begins. If the administrative organ violates the rule of obtaining evidence before ruling, it will bear the consequences of losing the case.

4. The deadline is illegal. The time limit of administrative procedure refers to the time limit prescribed by law for an administrative organ to make or complete an administrative act. The so-called illegal time limit means that the administrative act violates the statutory time limit. Time limit is the basic element of administrative procedure, and administrative acts that violate the statutory time limit are also procedural violations. Abiding by the statutory limitation is the basic requirement of the administrative procedure law for the legal relationship subject of administrative procedure. From the height of the rule of law, there are corresponding restrictions on behavior, and this restriction is specific and legal. The audit notice of some audit institutions and the time for issuing or issuing audit reports have not reached the statutory limitation. For example, audit notice did not deliver the audited entity three days in advance, and the delivery date of audit notice was the audit start date.