On The Application Of Local Regulations In The Administrative Trial

The application of law is an important part of the administrative trial system,which is an activity that the people’s court invokes the legal norms to review thelegitimacy of the specific administrative act and makes a judgment in individual cases.As one of the legal sources, the local regulations are the result of the specific locallegislature to exercise the legislative power, which have a certain binding to theapplication of law in the administrative trial. The application of the local regulationsin the administrative trial involves the relationship among the local legislative power,the judicial power, and still the local administrative authority, and is bound to ournation’s constitutional system and framework. Meanwhile, whether the court applyingthe local regulations reasonably and normatively have a direct impact on the legalreview of administrative act and the effects of administrative trial and relate to theeffectiveness of the administrative litigation system. Thus, the application of the localregulations in the administrative trial is a worthy legal issue, which also have a certainsignificance in theory and practice levels.This paper is divided into four chapters, taking the the methods of theoreticalanalysis, case analysis, text analysis and other methods. In the part of raised question,the paper starts from the problems of the application of the local regulations in theadministrative trial, and summarizes the status of the court dealing with these issues and evaluates it. In the part of analysis, the paper explores the legal basis of theapplication of the local regulations in the administrative trial from a differentperspectives of constitutional law and administrative law. In the part of settlement, thepaper recommends the administrative judge should "reference" the local regulations,and propose specific operating rules by putting the legal review as a core.Chapter one proposes the problems of the application of the local regulations inthe administrative trial by combing related theories and cases. The different provisionsabout the application of the local regulations in the administrative trial, whichprescribed in the administrative procedure law, the legislative law and The SupremeCourt judicial interpretations, cause the fuzzy of applicable rules of the localregulations, including applicable methods and forms. In the meantime, in the processof application, the local regulations may be conflict with the law and theadministrative rules and regulations, or can’t be invoked due to the fuzzy provisions,the occurrence of these problems has its realistic possibility.Chapter two summarizes the methods dealing with the problems caused by theapplication of the local regulations in the administrative trial and reveals its negativeeffects. Through the analysis of judicial cases, summarizes court’s ways and forms ofthe application of the local regulations in the administrative trial, practice of dealingwith conflict of provisions and difficulty to invoke the fuzzy provisions, to state thatin practice, court’s application of the local regulations is not standard. On this basis,further analyzes the negative consequences of application of the local regulations inthe administrative trial, it not only leads to defects in administrative trial, likeadministrative inaction, less rigorous judgment and so on, but also gives rise to localprotectionism of administrative procedure, weakens its function of right remedy.Chapter three puts forward that the legal theory should be complied with theapplication of the local regulations based on different perspectives of constitutionallaw and administrative law. Firstly, the paper starting from the legal status of the localregulations, analyzes its different values in administrative and judicial activities, andits application in administrative trial also should be analyzed. Secondly, according tothe principle of the unification of legal system established by constitutional law, analyzes its normative meaning to application of the local regulations, emphasizes onrestrictive requirements particularly. Thirdly, from the perspective of functionoptimization of administrative procedure, makes clear that court’s application of thelocal regulations should be in accordance with the function of supervising executivepower, strengthening rights reliefs and developing laws.Chapter four recommends to use the local regulations for reference inadministrative trial and to propose specific operating rules putting the legal review asa core. Presents the meaning of reference, analyzes its reference value to perfect theapplication of the local regulations. In terms of specific rules, legal review shouldobserve the following principles, including an exhaustive legitimacy interpretation, bebeneficial to the other party and all; the content review contains formal legitimacy andsubstantial legitimacy，identify the local regulations invalid should adopt the standardof resistance, the local court have the right not to apply the wrongful local regulationsand make a request to the The Supreme People’s court for review, The Supreme Courtshould have the right of confirming the illegality of local regulations.