Study On The Legal Status Of Administrative Normative Documents In The Administrative Trial

There is no doubt administrative normative document is the most number of abstractadministrative behavior in China, is also a main basis for a large number of specificadministrative acts, it decided it must be the administrative concepts that are often involved inthe trial. But for various reasons, some important source of law on the system ofadministrative litigation in China have not clearly its place in administrative adjudication.Long time, trial practice and administrative law scholars only around these rules forinterpretation of the ambiguous, incomplete, and interpretation of these often are designed tomeet the needs of practicing, lack of rationality to consider. Coupled with administrativelitigation system in our country started late, immaturity, judicial staff conservatives, are oftencaused by a "Court and the defendant to the plaintiff". Even if the Court considers theadministrative normative document illegal, is often a subtle approach, in trying to avoid thereferee administrative normative document evaluation, which is not conducive to people atthat time not only fully understand the judgment, and credibility of the judgment beingchallenged, not conducive to the establishment of judicial authority. Most critical is currentlyadministrative trial documents of administrative norms to effective oversight of the Executivepower, are more difficult to relief of violation of their rights, and the administrative procedurelaw set out in the first legislative objective truth. It should be said that administrativenormative documents in administrative proceedings before the trial status is not only aproblem, it is a question about power restriction and the right remedy. This is proceedingfrom the basic purpose of administrative trial, trying to give administrative normativedocuments in compliance with the legal status that meet the real needs and draw on theadvanced administrative law on the basis of national experience, try to make operationalrecommendations.In any case, the chief of normative documents in the administrative trial status should bedetermined by the nature and characteristics of its own, and not take the person’s will as totransfer or groups. Administrative normative documents were administrative actions, is a fact, and this article as a starting point, on the status of administrative standardized documents inadministrative adjudication in the in-depth demonstration, full text is divided into three parts:The first part, the administrative standard documents and related theories are briefly, thedenotation and connotation of the subject of this article is clear, also pointed out thatnon-legislative nature of administrative normative documents, lay the factual foundation fornext demonstration.The second part, by administrative normative documents on the status of administrativeadjudication in the immediate consideration, pointed out that the current focus of trial practiceand focus on the analysis of its causes, to create conditions for resolving the problem. Realityconsiderations from legislative practice, and judicial practice and current academic theory,multiple area start, which legal text level of observation undoubtedly is most important of, itnot only is rigid of system framework, also reflected has legislative who of value orientation,more is reality problem of roots; zhihou of typical case analysis, is on current judicial practicein the trial personnel general psychological of summary, also can for this concern of problemprovides a intuitive of awareness; and theoretical Shang of discussion more essential, it canmakes on problem of awareness by phenomenon deep into the nature. Through theseobservations can be found, administrative adjudication law of China’s origin in the provisionson the legal status of administrative normative document is really fuzzy, difficult to form acomplete rule; trial practice and academic theory is too focused on issues of practicalrationality and lack of consideration. This not only causes the judge at a loss, trial practice,like multiple, also made a large number of administrative normative documents free outsidethe rule of law, serious infringement of legitimate rights and interests of the parties,undermine the rule of law in our country unity.The third part, on the legal status of administrative judgment administrative normativedocuments in full, and reflections on the construction of, to try and make this problem morereasonable. First reflection on the shortcomings and deficiencies in the practice on the basis ofthe normative documents as Executive trial review of object views. This view not onlysufficient legal basis, there are pressing needs of reality, if the principle of the rule of law andthe principles of natural justice in the former, the latter is based on serious administrative normative documents lost in China, the WTO rules on the requirements of the administrativeprocedure, and professional quality of judges in China and constantly improving taking intoaccount. Next listed United States, and United Kingdom, and France and Germany four anational using judicial review on appointed Legislative for supervision of specific measures,summary which common reflected of power restricting concept, on in China concept ofbehind for reflection, and to this for Foundation made perfect in China administrativenormative file judicial review of recommendations: a is perfect administrative action judicialrecommendations system, makes its can real became judicial judgment of effective added, tochange administrative normative file of illegal status; II is established administrative action ofcase system, Make up for the chronic disease cannot depend on administrative litigation; threeis the perfect front system of reconsideration, administrative normative documents involvedinto front range for reconsideration of the proceedings to prevent excessive intervention of thejudicial powers on the Executive power and professional challenges of resolving them, tobetter clarify the case, ensure the smooth progress of the proceedings.It should be said that clearing the legal status of administrative normative documents inthe administrative trial of far-reaching significance. It affects not only the administrativelitigation work can be carried out smoothly, also the judicial review system in China and thedevelopment trend of administrative litigation system as a whole, it is our administrationaccording to law and building a socialist country under the rule of law are tasks that must becompleted. Judges in the famous case of Marbury sued Madison Marshall said in hisjudgment: a Government ruled by law, if the law gives the right of relief for violations of thelaw, it is not worthy of the title. There is no doubt that China is a country ruled by law. Swordand shield of the judiciary as the rule of law, must face the conflict between power and right,being the executive position of normative documents in the administrative trial. Only in thisway, the rights and powers vested to the balance, administrative litigation system in ourcountry to get substantive developments,"rule of law" of the title to a well-deserved.