On The Judicial Review System Of Administrative Normative Documents

In 2014,Administrative Procedure Law of the People's Republic of China for the first time defined the judicial review system of administrative normative documents at the positive law level,giving the power for the court to explicitly examine administrative normative documents and the right for the administrative counterparts request judicial relief for administrative normative documents that are considered illegal.It complies with the reform direction of ruling the country by law in an all-round way and building a socialist country ruled by law,embodying the constitutional basic principles of respecting and protecting the basic rights of citizens,supervising and restricting the power.At the same time,in the administrative law,it responded to the idea of incorporating abstract administrative actions in the scope of administrative litigation,filling the gaps in the China's judicial review mechanism,realizing the convergence of the administrative behavior supervision system;inheriting the fundamental legislative purpose for protecting the rights of administrative counterparts,expanding the scope of the protection of the rights administrative counterparts,improving the thoroughness and effectiveness of legal rights protection.From the establishment of the judicial review system of administrative normative documents in 2014 to the interpretation of the Supreme People's Court's Interpretation of the Application of the Administrative Procedure Law of the People's Republic of China in 2018,a large number of administrative cases involving administrative normative documents have appeared in the judicial practice of the court.The censorship system gradually landed and achieved initial practical development.At the same time,it also exposed many institutional defects and difficulties in judicial practice,which affect the effectiveness of the implementation of the system.Therefore,based on the analysis of the rationale for the established by the system in China,this thesis examines the obstacles that restrict the development of judicial review system through empirical analysis,and selective reference to the extraterritorial judicial review system to propose feasible improvement measures.The thesis is divided into four parts.The first part is the rationale and content of the judicial review system for administrative normative documents.The rationale for the establishment is mainly from three aspects: constitutional basis,realistic reason and theoretical basis.By reviewing examination mode,scope of examination,criteria and effectiveness of examination,this paper will analyze the content established by the system.The second part is an empirical analysis of the judicial review system of administrative normative documents with 308 case files as the analysis sample.Through the gradient progressive research on the three aspects of program start-up status,entity trial status and result processing status,we find problems and obstacles in the judicial review process.The reason is not only the problems of the system's own conservatism and limitations,but also the influence and obstacles of China's institutional structure and the gap between theory and reality.The third part is the comparison of the judicial review system of extraterritorial administrative normative documents.Choosing the judicial review system of the United States,France and Germany as a reference example,it is found that whether it is the United States with different legal systems from China,or France and Germany which belong to the civil law system,the judicial review system is related to the power structure and justice of the country.The cultural traditions are in line with each other,with the full protection of rights as the direction,the scope of examination is constantly expanded in development,the examination standards conforming to substantive legitimacy are constructed,and the effectiveness of the examination conclusions is strengthened.The fourth part is the improvement of the judicial review system of China's administrative normative documents.First of all,it is necessary to improve the mode of examination,with the mode of censorship as the main method,supplemented by direct examination under certain conditions.Secondly,standardize the review and identification mechanism of administrative normative documents,and on this basis,expand the scope of examination,and include administrative regulations and administrative interpretations.Thirdly,the review standards will be enriched,the judgment criteria of legality review will be refined,and the rationality standards will be introduced.Finally,the effectiveness of the review conclusions will be strengthened,an information sharing platform will be established,the universal effectiveness of judgments will be realized,and an investigation mechanism for illegal liability will be established.