On Judicial Review, Abstract Administrative Act

To supervise and restrain administrative power with judicial power and to put the behavior of the administrative subject into the scope of judicial review of law court is a common practice in modern countries that are ruled by law. In China, for various reasons, the establishment of judicial review system to supervise the exercise of administrative power is late, and the jurisdiction of judicial review is extremely limited. Practice for more than 10 years has proved that this system does not adapt to the needs of democratic progress and social development. On one hand, according to the Law of Administrative Procedure, the people's court can only handle proceedings raised for disagreement with specific administrative actions made by administrative subject and the working staff, while judicial right of immunity such as the formulation of administrative laws, regulations and other notices which are universally binding are excluded from the scope of judicial procedure, thus making abstract administrative behaviors acquire "judicial right of immunity". However, when reviewing the legality of concrete administrative behaviors, it is necessary to examine the abstract administrative behavior that is the source of the latter. The judicial right of immunity of abstract administrative behaviors will inevitably limit review on concrete administrative behaviors and may render the aim of the Law of Administrative Procedure to exercise administrative power by law through judicial supervision and administrative organs came to nothing. On the other hand, In the process of systematic transfer, administrative departments pay more attention to abstract administrative behaviors which are universally binding and can be repeatedly utilized, and there are extension, expansion of abstract administrative behaviors, which are the main expression and source of violation and abuse of administrative power. Some administrative organs have become accustomed to exercise administrative power in violation of law and apportions and local protectionism as well as fixing power of its own. In addition, the formulation of normative documents below regulation is not serious, and is based often not on practice, but on subjunctive imagination. Moreover, the large number of subjects involved in the formulation process result in contradiction and disagreement between some administrative normative documents, which have seriously violated the legal right of administrative object and done harm to the administrative and legal procedure, and poses serious challenge to the restriction of administrative power through judicial review and supervision. The article plans to discuss the necessity and feasibility of judicial review system of abstract administrative behaviors from an analysis of the present situation of the judicial review system of abstract administrative behaviors, and further gives suggestionson the establishment of judicial procedure review system of normative documents below regulation.The article uses the method of analysis,constrast and evidences and make a superficial study on improving the judicial review system of abstract administrative behaviors, the article has 42 thousand words and it is consisted of 7 partsPart 1 gives the concept of abstract administrative behaviors and judicial review.Part 2 analyses problems existed in the practice of abstract administrative behaviors, which mainly include: incentive motivated, disorder in procedure, non-transparent, chaotic subjects and irrational contents.Part 3 points out that abstract administrative behavior is also object of judicial review in our country, and uses some examples to show the present situation of abstract administrative behaviors in our country.Part 4 discusses the necessity of putting abstract administrative behavior into the scope of judicial review.Part 5 analyses the theories and background for judicial review of abstract administrative behavior, using foreign experiences and on the basis of successful practice of administrative procedures, discusses the feasibility for judicial review of abstract administrative behavior.Part 6 discusses the mode and scope for judicial review of abstract administrative behavior.Part 7 makes specific assumptions on establishing the system of procedure review system of administrative normative document below regulation in our country.