Study On Incidental Review Of Provisions In Administrative Litigation

On the Twelfth National People’s Congress Eleventh Meeting of the Standing Committee, November 1st,2014, the "Administrative Procedure Law" was revised, and the revised "Administrative Procedure Law" came into effect from May 1,2015.The added section 53, section 64 in the revised "Administrative Procedure Law" established the system of Incidental review of the Provisions, and gave the administrative counterpart the right of proposing incidental review request to the administrative act according to the respond provisions when proceeding Administrative Litigation to the administrative act. The positive significance of this system is undisputed.However, relying on these two statutes alone, cannot meet the specific operating needs in practice nowhere near.Notwithstanding, in the judicial interpretation issued by the Supreme Court on April 20th 2015, also came up with only two clauses addressing the system of Incidental review of the provisions. Above two judicial interpretations clarified the time of Incidental review requested by the administrative counterpart, and concretized the solutions of the illegal provisions by the the people’s court.Admittedly, the existing legal norms are not the perfect answer to the normalization and effectivity of the Procedure of Incidental review of provisions in administrative Litigation function. They are unable to respond to some inevitable practical problems, such as Contents and standards of Incidental review; procedure and method of the incidental review; the effectiveness of the Judicial Suggestions after the review and its legal guarantee, and so on.Without the standardization and solution to these problems, the normal function of the provisions’Incidental review system can be difficult to guarantee, and the expected effectivity of the system can be also restricted.In this paper, the provisions’ incidental review system in administrative Litigation would be the topic and theme, which would raise theoretical explanations and discussions to some important content in the system, and analysis the practical problems facing in the operation of the incidental review system and try to put forward solutions.The main issues discussed in the paper including:the meaning and scope of provisions(administrative normative documents), the meaning and essence of "incidental review" in administrative litigation, the procedure of incidental review in administrative litigation, also the solution of incidental review in administrative litigation and its effectiveness and so on.This paper aiming to enrich the theoretical study on this relatively new area of provision incidental review in administrative litigation, and to benefit the administrative litigation practice.The paper states from the following aspects:The first part is the definition of the provision in administrative litigation, includes the definition of the meaning, scope and legal status of the provision incidental review in administrative litigation.The second part analysis the meaning and substance of incidental review in administrative litigation. This part contains the meaning of the provision in administrative litigation, the positive significance of provision incidental review in administrative litigation, the analysis of the essential of provision incidental review in administrative litigation, the compete the similarities and differences between’incidental review’ and referencing the regulations, aiming to understand the reasonable connotation of incidental review.The third part studies the content and standard of the incidental review in administrative litigation. The review includes the subject, detailed content, procedure of establishing of the provisions and other aspects. The standard of the review is focused on the combination of the judicial practice in our country, and on the establishment of the legal and reasonable standards for provision incidental review.The fourth part is about the procedure of incidental review in administrative litigation, including the study of the Court jurisdiction in incidental review, and method of incidental review, and the specific conduct of the procedure of the incidental review.The fifth part is about the solution of the incidental review in administrative litigation and its effectiveness. Includes,firstly, the conduct of Judicial Suggestions to relative institution after the hearing of illegitimate; secondly, the study of the effectiveness of Judicial Suggestions and the practical problems that exist, and accordingly establish safeguard mechanism to implement the recommendations of Justice, also to strengthen effect of provision incidental review in administrative litigation.