The Study About The Legal Status Of Other Administrative Normative Documents In Administrative Trial

Currently, China is striving to build an institutionalized country, and all aspects are stepping into the orbit of law. The rule of law lies in the administration by law. Other administrative normative documents are the important means of administration and social service, with the increasing depth of administration by the law, it has become important increasingly in the implementation of the laws and policy. According to statistics, eighty five percent of the administrative affairs are based on other administrative normative documents. However, it has so many problems that legislature and judicial hold on the fuzzy attitude to it. Especially in the judicial link, it takes negative attitude to its legal status. This brings such a contradiction-the importance in the administrative and the negative attitude in judicial link. This contradiction is unreasonable, and will bring the following two troubles: First of all, leading the administrative organs and their staff members to be in the dilemma of do or not do which administrative decision they must do. It is not contribute to the implementation of the decision. Secondly, result that some of the administrative case no laws accorded to or pursuant to far-fetched. The judiciary does not recognize the legal status of other administrative normative documents is understandable proceed from maintaining the authority of the law. However, the correct way to maintain the authority of the legal system is not avoid it but through regulating and legal supervision to reduce its problems, then give it reasonable legal status. This is the really way to follow the principles of our legal system and the rule of law.Through comparison analysis and case analysis, this paper analyzed its status and effects on the basis of the basic theory. Analyzing the existing laws and regulations, then reveal its legal status in administrative trial in China, by case shows that non-recognize of its legal status would lead some challenges and problems. On the basic of analyzing the practice of Germany, France, the United States and Taiwan of China, put forward that the reasonable status of other administrative normative documents "reference", then made the specific implementation process. This paper consists by six parts, and forty thousand words in all.Part one: The basic concepts and theories of other administrative normative documents.First of all, put forwards the name of other regulatory documents among so many names, and define it explicitly. The concept is that the decisions, orders and administrative measures which outside of regulations and rules and formulated and issued by the state administrative organs according to the laws, regulations and rules. Secondly, explore its history, the special background and the reasons why it existed. I think that other regulatory documents the natural continuance of our national management means and the product of the special system and backward legal. Moreover, shows the present situation of other administrative normative documents and the practical function.Part two: Current legal application in administrative trial in China.Firstly, analyze the status of laws, regulations and rules in administrative judge. Based on the interpretation of the administrative procedure law, we can see that the basic principle of legal application is according to law, administrative regulation and rules. Secondly, analyze the status of other administrative normative documents. Though search and analysis the laws and regulations, we can find the status of them is trial and fuzzy. In academics, It is also divided two positions in academics: affirmative and negative.Part three: the attitudes and practice of other countries and regions.In the Germany, France, the United States and Taiwan, although the name and concept have some differences among these areas, they gave such document certain legal status, and admitted this legal status in judicial. I believes that, the experience is worth our using for reference. Part four: reassessed the status of other administrative normative documents in the administrative trial.The status of other administrative normative documents should be "reference", that is application conditional, and the supplement of "basis". "Reference" follow behind"basis". In my view, other administrative normative documents are review objects, If it is legitimate after examination, shall be applicable in administrative trial, if illegal, shall not be applicable.Part five: the perfect system to improve the quality of other regulatory documents.First of all, should strengthen formulated procedures of other administrative normative documents, the author suggest enacted Regulations of Other Administrative Normative Documents in order to make it rule-based. Secondly, establish record supervision system. Formed the new supervision mode which by people's congress, administrative internal supervision and judicial surveillance. Then, established responsibility system to file the enacting body responsibility to illegal documents, and give country civil servants the rights not to abey the illegal documents.The last part in this paper, the author presents that it is a long-term and difficult process to give other administrative normative documents corresponding legal status.The paper's main innovation lies that give other administrative normative documents corresponding legal status while strengthen provisions about it. The corresponding status is "reference", then proposed the implementation ideas to carry out.