Research On The Application Of AdministrativeConventions In Current Juridical Practice In China

At present,in our country administrative conventions were applied widely in juridical practice.Not only because it can help to offsets the deficiency of statutory law,but also provides reasonable expectation owing to subjective trust of public people.It has positive significance in solving the practical difficulties effectively.Some administrative conventions have transferred to laws and regulations.As the origins of laws and regulations,more and more scholars take focus on administrative conventions,researching on legal status,legal rank,constitutive requirements and so on.Most scholars admit administrative conventions being the legal status and research on the basic contents of administrative conventions.Some scholars begin to explore the institutional methods of administrative conventions,show us the direction of advance.In juridical practice,some cases about disagreements of administrative conventions do exist.But it is difficult to classify scientifically and normalize rationally.And different judicial officials do not have uniform cognition;different courts do not have uniform standard and procedure.In addition,public orders and related policies affect the administrative conventions.All of these situations above induce the chaos of application about administrative conventions in juridical practice.So,in order to solve the difficulties above,it need to build systematic institution on base of sufficient theories about administrative conventions,normalizing the definition,force of law,rank and constitutive requirements.The critical thing is to make the judicial review better and set more explicit provisions,then become systematic institution.The paper aims to solve the difficulties about application of administrative conventions in juridical practice.The paper is divided into three parts.The first part mainly adopting quantitative method and case analysis method is the basic of the paper.The author searches the judgment documents on China Judgment Online with the key words of conventions and then chooses the administrative cause of cases.A total of 1868 cases have been retrieved(up to March 19,2019).There is an increasing trend year by year.In 2018,there were 586 cases.By removing the international conventions,judicial conventions,civil conventions,and duplicating the same and similar administrative conventions,also subtracting the administrative conventions of civil subsidy,public complaints and proposals less applied,it remains 121 administrative conventions.Nineteen typical cases of 121 cases,which administrative conventions applied are selected to study their cases and summarize the difficulties in the application of administrative practices in judicial practice.It concludes the difficulties about application of administrative conventions from specific cases.The difficulties are:there is no clear attitude to the application of administrative conventions,confusion of legal rank,lack of review,lack of review standards and so on.The second part analyses the difficulties above and research for the causes about it.Firstly,the shortcomings of administrative conventions include the disorder of types and forms,and the lack of clarity of contents and values.Secondly,Judicial environment is not optimistic.Theoretically,more and more scholars take focus on administrative conventions,but there still have certain gap between administrative conventions and statutory law.And people’s legal awareness and legal literacy of judicial personnel need to be improved,and the ability to transform administrative practices has been strengthened.Thirdly,the districts and traditions affect the application of administrative conventions.The third part is the countermeasures about administrative conventions,which concludes from analyzing the former two parts.The author not only lists the fundamental things of administrative conventions,for example,the definition,legal force,legal status,constitutive requirements and so on;but also lists the subject,content,standard and so on to improve the institution of judicial review.This part is the innovation of this paper.