Research On Judicial Incidental Review System Of Administrative Normative Documents

In May 1st 2015,the revised Administrative procedure Law came into effect in China,but not all of the newly emerged systems are perfect.As the revised Administrative procedure Law does not have a way of examining administrative normative documents,The examination criteria,the handling of the specific implementation of the recommendations,and other issues have made clear provisions,so that the courts do not know how to apply the provisions of the law when they review the administrative normative documents incidental to the review,and the methods used by the courts to review the law vary from place to place.The implementation of the system of appended examination of administrative normative documents by Chinese courts is in the exploratory stage.Based on the analysis of the "blank zone" and the statistical analysis of the judgment of the Supreme people's Court,this paper sums up and analyzes the problems encountered by the people's courts in judicial practice.To explore reasonable solutions for the reference of the court,to promote the perfection of the system of judicial incidental examination in our country,and to analyze and demonstrate the system of incidental examination of normative documents according to the new provisions of administrative litigation.The content of this paper is divided into the following four parts:In the introduction part,the author first expounds the issue and significance of the judicial collateral review of administrative normative documents,and then introduces the domestic and foreign research reviews on the judicial review system of administrative normative documents.Finally,the innovation of this paper is briefly explained.The first part is an overview of the incidental examination of administrative normative documents.First,the definition and significance of the incidental review of administrative normative documents.This part defines the concept of administrative normative documents on the basis of articles of law.Then it expounds the important role of administrative normative documents in judicial practice.Secondly,the history of administrative normative documents is reviewed.This part introduces the three stages of the beginning,development and maturity of administrative normative documents in China.In this process,the administrative procedure law of our country continuously consummates in order to adapt to the development of the times.The second part is the analysis of the current situation of judicial incidental examinationof administrative normative documents in our country.As far as the standards of review are concerned,the incidental review of courts in our country mostly adopts the standard of legality,and with the development of administrative litigation,In addition,12 judgments of the Supreme people's Court have been counted,and the problems of the current judicial review in China have been analyzed.As far as the way of initiating the review is concerned,There is no doubt as to the plaintiff's status as the subject of the claim,so whether the third party in administrative proceedings also has the right to request the court to conduct an incidental review is still controversial.As far as the subject qualification of the defendant is concerned,It is imperative to make it clear that the issue of whether or not the authorities have the right to act as a defendant...as far as the competent courts are concerned,Whether the courts of judicial review and the organs that make administrative normative documents require reciprocity at the level of the existing laws has not been clearly specified.As far as the choice of the examination mode is concerned,can the court adopt a combination of written and court hearings? And whether we can increase the way of ex officio active review should be clear at present.As far as the handling power after judicial review is concerned,this article explains the words and expressions which are not clear in the article of law.The third part,the review mode of foreign abstract administrative act,introduces the review mode of civil law countries and common law countries,and provides experience for judicial review system of our country.Part 4th is the perfection of the judicial incidental examination of administrative normative documents.Based on the problems mentioned in the second part,the author puts forward some suggestions on how to perfect the system of administrative normative documents' incidental review,including establishing the examination standard of substantive legality.Expand the way of examination,improve the effectiveness of judicial recommendations,give play to the role of the Supreme people's Court to determine guiding cases,and establish the information sharing platform after the incidental judicial review.