Administrative Normative Documents Court Incidental Review System Research

With the revision of the Administrative Procedure Law of the People's Republic of China in 2014,a new kind of jurisdiction of judicial review was born,which was named the power of collateral judicial review.With this power,the court can review the administrative normative documents which related to the legality of administrative action in administrative litigation.The power structure of judicial review of administrative normative documents is different from other judicial review powers.Few rules for the operation of this new power existing in the statute remains large discretion for the court on the acceptance of judicial review clam,the way and criteria of review,the depth of review and the application of review verdict.In five years,with the operation of this power,the court has formed some institutional experience,and scholars have gradually offered plenty suggestions to improve the system for operation.The functional multiplicity of the right of collateral judicial review leads to different emphases in court practice and academic theory.On one hand,based on the pragmatism and influenced by the right of pre-review in applying law,the court initiate collateral judicial review only when the administrative normative documents are strongly related to the disputes.The court takes dispute resolution as the basic goal and has a weak will to supervise administrative normative documents.The court does not eager to initiate the review,and response to the claim with a weak review.On the other hand,based on the function of supervising administration,academics hope the court initiate the review as much as possible,so that their suggestions for the review may break the institutional framework made by law.The academic criticize the actual effect of power operation,while the suggestions of the academics appears difficulty to be applied for the court.The research of collateral judicial review system and rules is caught in the tension between existing theory and practice.The breakthrough of the research dilemma of the collateral judicial review system is to analyze and clarify the characteristic of the collateral judicial review power and the evolution approach of its system.The collateral judicial review distinguishes from the other two powers of judicial review of administrative normative documents.One power is special review that brings a lawsuit directly on the legality of administrative normative documents,and be review by the court.The other one power is pre-review in applying law that initiated by the court when it is necessary to ensure the legitimacy of administrative normative documents before the documents be applied.The research is carried out on the basis that the power of collateral judicial review is unique,no matter compared to other judicial power or compared to the other system of administrative documents review,like recording review and the review in administrative organ.Then the reserach will disscuss the purpose,the function and the future evolution trend of this power and its system rules.With the research of the characteristic of this power and the evolution trend,the court will realize the current defects of power operation and optimize the operation in a model that fits the demand of collateral judicial review.Breaking the institutional framework made by law is not the best way to solve the current institutional dilemma.On the premise of remaining in the limitation of the existing statutory system,the defects of the collateral judicial review system can be eliminated by the rational use of the court's discretion and the exploration of the legality review mechanism.It mainly includes: eliminating the recognition problem of review object,improving the possibility of the start of the review,designing clear start step,clarifying strong review and weak review patterns,matching the scope and criteria to different review elements,optimizing the review technique and method,exploring a mechanism which can maximize the effect of judicial review.In these ways,the function of collateral judicial review that promoting administration according to law will be realized.The article consists of an introduction and seven chapters,taking out an in-depth analysis and systematic research on the core issues of the right of collateral judicial review and the review system of administrative normative documents.They are as follows:The introduction part makes a comprehensive and systematic review of the current research of collateral judicial review system and locates the breakthrough point of system research,explains the case sample source of the empirical research in this article,introduces the main issues that need to be solved,introduces the research route and methods,introduces the research emphases.Chapter ? analyzes the characteristic of the collateral judicial review power,and the evolution trend of its system.This chapter introduces and analyzes the concept,attribute and formation process of the collateral judicial review power on administrative normative documents,and holds that the institutional framework of the judicial review powe evolved from the pre-review in applying law power system.But the power structure is similar to the special review power,both are passivity and Including admissibility.The optimality of collateral judicial review power is reflected in the function of problem solving and the matching with court's ability on judicial review.The framework of pre-review in applying law power system can not adapt to the multiplicity of the function of collateral judicial review power.Therefore,the development of collateral judicial review system is based on matching the functions given to the collateral judicial review power and the ceiling of judicial review ability.Chapter ? focus on the subject of collateral judicial review.This chapter focuses on how to break through the recognition dilemma of administrative normative documents.The concept of "administrative normative documents" was not created for the collateral judicial review.The inherent ambiguity in the denotation of "administrative normative documents" will lead to the difficulty in identifying the review objects.The solution is to return to the study of the subject itself.With the method of system explanation and administrative subject theory,it is clear to Identify the types of documents that can be reviewed.It is suggested that the objects of review should be clarified in the form of general affirmation and enumeration negation,and the documents with unclear qualitative nature should be included in the review.Chapter ? discusses the initiation steps of collateral judicial review.The existing theoretical framework of starting elements is analyzed in this chapter,with an evaluation of the institutional defects in the theoretical framework from the perspective of judicial efficiency.Then it examines the causes of initiating negative states in practice of this power,proposes an operational initiation process.In the design of process,special attention is paid to the connection between the collateral judicial review power and pre-review in applying law power.According to the relationship type between administrative action and its applied documents,different initiation paths are designed for the two powers.Chapter ? studies the scope,criteria and intensity of collateral judicial review.This chapter firstly analyzes the influencing factors and forms of review intensity,makes it clear the distinction between strong review and weak review.Then built a model with partial strong review and comprehensive weak review.The intensity of review is also reflected by the selection of review criteria.Under the restriction of the national power structure and the capacity of the court,the collateral judicial review is limited.Best model is to choose corresponding criteria to different elements in review.The criteria include "non-conflict" criteria,"non-conflict" criteria,"consistency" criteria which perform different intensity.Chapter ? is a detailed analysis of the way for collateral judicial review.It holds that the particularity of collateral judicial review lies in the assignment of responsibility to different litigant parties,the basis of review from other system and the application of review technique.To realize the dual functions of dispute resolution and administrative supervision with power of review,the responsibilities of searching evidence and explanation for the legitimacy of documents in review need to be assigned to three litigant parties and the rulle-making organ.Review process and review conclusion need to be presented in the written judgment.In terms of the selection of basis and the application of techniques,it is necessary to make full use of the existing achievements in the management and supervision mechanisms of administrative normative documents and give play to the court's expertise in law interpretation and law application.Chapter ? studies the conclusion and effectiveness of collateral judicial review.This chapter makes an in-depth analysis of the current form of judgment of review,holds that all courts should generally exclude the application of an administrative normative documents if the document has been confirmed to be illegal by a collateral judicial review.In the trial of the legality examination mechanism of administrative normative documents,the conclusion of the collateral judicial review should be connected with the documents liquidation mechanism in administrative organization system,and an internal examination mechanism in required to urge the administrative organs to timely deal with the illegal administrative normative documents.