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On The Litigation Status Of The Authority Developing Regulatory Document In The Administrative Litigation

Posted on:2019-04-14Degree:MasterType:Thesis
Country:ChinaCandidate:C H ZhaoFull Text:PDF
GTID:2416330545452636Subject:Constitution and Administrative Law
Abstract/Summary:PDF Full Text Request
The rule that the citizen,legal person,or other organization may concurrently file a request for review of the regulatory document when filing a complaint against the administrative action(the academic community also calls it "incidental review"),which is established by the "The Administrative Litigation Law of the People's Republic of China"(2014)(hereinafter referred to as "the Administrative Litigation Law")is a major achievement of this revision,it also represents the highest expectations for improving the level of administrative law.However,the incidental review system is only established in a framework and is not clear enough in details yet.For example,the litigation status of the authority developing the regulatory document in the administrative litigation is not clear and has not been stipulated in the Administrative Litigation Law.When the authority developing the regulatory document is not a defendant in a incidental review case,the litigation status of it becomes a very important issue.Since the authority,as the maker of the regulatory document,knows,masters and controls all the details and evidence of the regulatory document,such as the establishment basis,the purpose,the reasons,and the development procedures,it is crucial to clear the litigation status of the authority developing the regulatory document in the administrative litigation for the conduct of incidental review.Failure to make it clear may resulting in the litigation relationship incomplete,also may cause the rights and obligations of the parties cannot be allocated rationally and equitably,and may be unfavorable to protecting the lawful rights and interests of the authority developing the regulatory document.Therefore,clearing the litigation status of the authority developing the regulatory document in the administrative litigation is very significant for the effective conduct of incidental review,as well as the maintenance of the lawful rights and interests of the parties,the realization of procedural justice,and the improvement of the litigation theory of the incidental review system.However,there is currently a lack of research in the academia that specifically addresses the litigation status of the authority developing the regulatory document in incidental review.Only a small part of a few articles is involved.The main points of these studies include:view it as a person which is not a party to the case,as a co-defendant,or as a witness,but these points are far from reaching an agreement.This article attempts to discuss the litigation status of legislature of regulatory documents,and to reveal the proper litigation status accurately,through doing legal analysis and combining related judicial practice.The academic community's current points that view the authority developing the regulatory document as a person which is not a party to the case,as co-defendant,or as a witness are not scientifically reasonable and debatable.There are theoretical flaws and it is not operable in practice.Firstly,the authority developing the regulatory document should not be a person which is not a party to the case since it is an interested party to the incidental review.Secondary,it should not be a witness,identification or evaluation expert,since it is not neutral in the case,and it submits evidence which supporting the claim that the relevant regulatory documents are lawful is not only to provide objective facts,but also to seek for its own interests in order to obtain favorable judgment for their own sake.In addition,according to the Administrative Litigation Law revised in 2014,the authority developing the regulatory document shall not be a co-defendant in administrative litigation when it comes to an incidental review.This article holds the point that the authority developing the regulatory document may,as a third party,participate in administrative litigation.Although it is not stipulated in the Administrative Litigation Law at first place,the general provisions of a third party provide institutional space to support this point.From the perspective of litigation theory,the authority developing the regulatory document meets the constitution requirements of a third party in the administrative litigation,and viewing it as a third party also suits the purpose of the establishment of a third party system in the administrative litigation.Additionally,it is conducive to the conduct of incidental review and protection of all parties' rights and interests.Firstly,in both theory and judicial practice,administrative agencies shall become a third party in the administrative litigation.Therefore,there is no subjective qualification barrier in viewing the authority developing the regulatory document as a third party.Secondly,according to the third party theory of administrative litigation,a third party is neither the plaintiff nor the defendant,but has an interest in incidental review.The authority developing the regulatory document meets these characteristics basically.The court reviews the legality of the regulatory documents involved and offers the relevant judicial recommendations,which causes an effect on the rights and interests of the authority,so it has an interest in the outcome of incidental review.Thirdly,although the court's determination and handling of regulatory documents only appeared in the part of the referee reasons,what is important is that it confirms whether the regulatory documents are lawful,and makes judicial recommendations such as revoking,modifying or repealing the unlawful regulatory documents.All of these can be attributed to the scope of "has an interest in the outcome of the case",which is stipulated in Article 29 of the Administrative Litigation Law.Fourthly,viewing the authority developing the regulatory document as a third party in administrative litigation is also in line with the purpose of "protect the lawful rights and interests of the parties,find facts,thoroughly resolve disputes,and improve judicial efficiency".Finally,this article sorts out 1835 cases which have involved incidental review since the implementation of the revision of the Administrative Litigation Law in 2014.It is found that there are five cases in judicial practice that have viewed the authority developing the regulatory document as a third party,which shows that the point has a practical basis and is operable.It is also necessary to study a series of related issues in order to support the point,including:the rights and obligations of the authority developing the regulatory document as a third party,the manner of participation,and the consequences for the outcome of the case.Firstly,as a third party,besides shall be entitled to retain representatives,present a statement,debate,the authority developing the regulatory document shall be entitled to provide evidence when it applies to participate in the action,and also have the burden of proof when the people's court notifies it to participate in the action.Because it exercises the right of proof to defend its rights and interests when it applies to participate in the action,as well as bears the burden of proof when the people's court notifies it to participate in the action for the conduct of incidental review.In addition,the authority developing the regulatory document shall not have the right to appeal,since Article 29 of the Administrative Litigation Law provides that "Where a people's court enters a judgment that imposes any obligation on a third party or impairs the rights and interests of the third party,the third party shall have the right to file an appeal according to the law",but the court shall not enters a judgment that imposes any obligation on or impairs the rights and interests of the authority developing the regulatory document in incidental review.Secondly,the manner of participation includes the people's court notifying it to participate in the action and applying to participate in the action.Where it refuses to appear in court after being notified,the court may still conduct incidental review on the regulatory documents.Thirdly,the consequences for the outcome of the case includes:it shall make response to the judicial proposal in written timely,and revise or repeal the illegal regulatory documents.In this degree,the authority developing the regulatory document is different from the general third party because the court does not enjoy the full jurisdiction in incidental review and cannot "decide" to revokeor repeal regulatory documents.Where the court deems that regulatory documents under its review is illegal,it shall make statement in the part of referee reasons and provide the authority developing the regulatory document with judicial recommendations such as revocation and repealing.
Keywords/Search Tags:Administrative Litigation, Incidental Review, Regulatory Document, the Authority Developing the Regulatory Document, A Third Party
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