A Study On The System Of Censorship Of Normative Documents In Administrative Litigation

Administrative Procedure Law of the People’s Republic of China established the system of people’s courts’ attached review of normative document in 2004.Although the administrative reconsideration system attached review of normative document has filled some gaps, there has many questions in the field of theory and practice. In order to improve the system of people’s courts’ attached review of normative document, the author of this article make analysis on related issues from following four aspects. They are the characterization before review, the way of review, intensity of review and the way of dealing with the problems after review.Firstly, people’s courts should make sure the reviewed documents are normative documents before they start the attached review process. The way to qualify these documents is to realize the administrative department and the different formats of them.Secondly, as far as the legislation of the system of attached review is concerned, Chinese courts’ adopt the attached review because of emphasizing the subjective litigation function. On the one hand, in order to ensure the efficiency and fair of administrative procedure, people’s courts can adopt trial examination and written examination in the process of trial. On the other hand, the author of this article is trying to illuminate the possibility of judicial committee reviewing the normative documents through the case of the Hua Yuan Company suing trademark office.Furthermore, in order to ensure the intensity of review, we should use the method of comparative study. In the view of legality doctrine and principle of rationality, the system of people’s courts’ attached review of normative documents should quote not only legality but also principle of rationality. From the point of view, the attached review can be separated substance and form. Substantial review should be a loose review and formal review should be a tense review.Finally, the problems which are in attached reviewing and after the attached reviewing process should be resolved. The way to solve the problem is to add a feedback system on the basis of existing system. The system of giving advice to administrative organization should be connected with the filing system of the administrative regulatory documents.