The Legal Restriction Of Non-legislative Rule

In the system of American administrative law,the non-legislative rulemaking is an important policymaking tool.As a kind of rules,non-legislative rules are used to notice the public about the interpretation of laws or the policy of some special administrative matters without legal effect.Because of the extensive application of the non-legislative rule in practice,there is a consensus that the non-legislative rule should be regulated under the rulemaking procedure and the judicial review.For the procedural regulation,the United States has undergone a transition from focusing on“public participation” to giving consideration to both “efficiency” and “democracy”.For the judicial review,the United States has changed the test for distinguishing non-legislative rule from legislative rule,and the US has also balanced judicial supervision and administrative effect.The first chapter mainly introduces the agency policymaking tools and agency choice and the system of administrative rules in the United States.According to this theory,non-legislative rulemaking is one of the policymaking tools.In the system of American administrative rules,non-legislative rules have a special status.Although they have no legal effect,they have a certain practical binding effect.Chapter two describes the current situation of non-legislative rules in practice,and explains those problems that non-legislative rules faced.Non-legislative rules are widely used in the practice.However,non-legislative rules are usually not constrained by the notice-and-comment procedure and the judicial review of non-legislative rules by courts is not comprehensive.Therefore,how to avoid the arbitrariness in the rulemaking and application of non-legislative rules by agencies has become one of themes in the field of administrative law in the United States.Chapter three,aiming at the dilemma of non-legislative rules,elaborates those responses of the current practical circle to the plight of non-legislative rules,as well as the reform proposals of the academic circle.The executive,the judiciary and the legislature of the United States advocate strengthening the judicial review and procedural regulation of non-legislative rules.Specific measures include: addingnotice-and-comment requirements when making non-legislative rules,establishing relevant judicial review models and standards for non-legislative rules through cases,and taking non-legislative rules into the scope of judicial review by legislative means.Chapter IV introduces a new reform program about how to control the non-legislative rule.On the one hand,they proposed new procedure called “limited notice-and-comment” for rulemaking to ensure the efficiency and procedure regulation;on the anther hand,they create a new test to distinguish non-legislative rules from legislative rules and introduce the “week judicial deference” definition to adjust the relation of executive and judiciary.Chapter V summarizes the developing trend of non-legislative,and puts forward some suggestions on perfecting the rule of law of administrative law in China.This part tries to absorb the experience of the US for guiding our legal regulation of normative documents from two aspects: rulemaking procedures and judicial review model.