Research On Judicial Review System Of Administrative Normative Documents

For a long time,the legal orientation of administrative normative documents in our judicial review has been in a state of ambiguity,which seriously hinders the role of the judiciary in the management of "red mess".Article 53 and Article 64 of the newly amended Administrative Litigation Law in 2014 expressly empowered the judiciary to carry out a review of administrative normative documents.This revision realizes the transformation of the administrative normative documents from the "hidden" examination to the "explicit" examination,and opens a new chapter in the judicial review system of administrative normative documents.From the horizontal selection of the administrative normative document regulatory path,The judicial review road can clarify the relationship between the legislative,administrative and judicial power,but also more in line with the law of power operation and the trend of the development of the rule of law,it has a positive and progressive significance.However,from the perspective of the vertical choice of the administrative normative document regulatory path,the incidental review system is actually originated from a long-term judicial practice experience,it is a "middle way" type of the choices that still has some limitations.From the implementation of the system,There are a lot of deficiencies and deficiencies in the operability of existing regulations,which require more detailed implementation details.From the point of view of the development of the system,the system still needs to be further improved in the scope of the review,the mode of review,the review criteria and the effectiveness of the review.Around the discussion and demonstration of the basic issues of the judicial review system of administrative normative documents,this paper intends to make an in-depth study from the following three parts:Introduction section mainly introduces the current situation of administrative normative document governance in our country and the background of the administrative litigation law to establish the system of incidental review of administrative normative documents,clarifying the choice of governance path of "red mess " and the change of coping strategy,and briefly explaining the basic ideas and methods of this study.The first part : Exploration Course and Route Choice of Judicial Review System of Administrative Normative Documents.As early as 1989,when the "Administrative Procedure Law" was enacted,academics and practitioners suggested that a judicial review system for administrative normative documents should be established.Due to lack of theoretical research and practical experience,the "Administrative Procedure Law" made in 1989 did not make provision for this.The ambiguity of administrative normative documents in judicial review has been the pace of judicial reform.The Supreme People's Court has changed the situation of not reviewing administrative normative documents through the development of judicial interpretations and judicial policies.The revision of the Administrative Procedure Law of 2014 clearly gave the judicial authorities the right to judicial review of administrative normative documents,and opened a new stage of the judicial review system of administrative normative documents.In the affirmative administrative normative document with the review system at the same time,we should also see this "middle way" type of choice there are still some limitations.Only in the administrative normative document regulatory path selection of the vertical and horizontal axis,recognizing the current system position,we can be more targeted to supplement the existing provisions of the shortcomings and deficiencies,and further propose to improve the system with specific recommendations.The second part : The Concrete Implementation of the Judicial Review System of Administrative Normative Documents.Article 53 and Article 64 of the existing Administrative Procedure Law and the provisions of Articles 20 and 21 of the Applicable Interpretation depict the basic framework of the administrative normative documentary review system,but there are still many shortcomings in the concrete implementation.In order to ensure the smooth implementation of this system,at least three aspects of the existing provisions should be refined: First,in the context of the commencement of the review process,the basic elements of the review,the subject of the request,the manner of the request and the reasons for the request should be clarified.Second,with the review of administrative normative documents,it should solve the problem of the determination of the parties,the examination of the subject,the choice of the examination method,the establishment of the examination criteria and so on.Thirdly,in the treatment of the results of the review,the improvement of the post-processing procedures and the strengthening of the effectiveness of the review should be addressed.The third part: Further Improvement of Judicial Review System of Administrative Normative Documents.The establishment of a regulatory review system of administrative normative documents opens the door to judicial review,but it is immature as new leaves.To establish a mature administrative administrative judicial review system still need to further break the old ideas,to explore the existing deficiencies,learn from useful experience,combined with specific national conditions,pave the way for it.The limitations of the scope of the review,the limitations of the review model,the ambiguity of the review criteria,the conservatism of the results of the examination are the problems that need to be solved in the future system construction.China should gradually establish a model of judicial review of the combination of abstract and incidental review,perfect the scope of judicial review to the part of administrative regulations and government regulations,the construction of standard system of judicial review,strengthen the judicial review of the executive force.