Research On The Judicial Review Of The Legitimacy Of Normative Document Procedures

The latest judicial interpretation issued by the Supreme Court in early 2018 provides in detail the application of the system of supplementary review of normative documents.Particularly noticeable is that this judicial interpretation for the first time listed the establishment of procedures as one of the elements of the court's legitimacy review of normative documents.Compared with the substantive review of normative documents,the current theoretical research and practical experience on the review of normative document formulation procedures in China are seriously insufficient.In order to ensure the smooth implementation of the judicial review of the procedures of normative documents,and improve the requirement of legalization of the form of normative documents,this paper discusses the problem of procedural violations in the process of the supplementary review of normative documents.Firstly,starting with the relevant legal provisions,this paper combs the establishment process of the legality review of the normative documents' procedures.Then,from the theoretical level,from the application of due process principle,the embodiment of procedural justice requirement in the process of formulating normative documents,and the measurement of interests in the review of procedural legitimacy,the necessity and importance of procedural review in the review of normative documents are elaborated.Then,based on the relevant judicial documents of procedural review,the judicial practice of procedural legality review of normative documents in China is analyzed.At present,the number of cases involved in the review of normative documents' procedures is relatively small,and the scope,basis and standard for the review of procedures need to be further clarified.In addition,this paper also makes a comparative study of the relevant experience abroad.The paper puts forward the following proposals: the court should comprehensively review the main formulation procedures of normative documents inthe process of procedural legitimacy review.As for the basis of review,the courts should take the existing effective government regulations at all levels and the relevant contents of the Regulations on Rules-making Procedures as the main basis.In case of loopholes or gaps in the law,or even serious damage to the legitimate rights and interests of the counterpart,the court may make judgments according to the provisions of relevant policy documents or due process principles.If the administrative organs make normative documents which violate “the standard of procedural norms” and “the standard of damage to rights and interests”,it constitutes a serious violation of the procedures and an absolute violation of the procedural legitimacy.Other normative documents with procedural defects can be repaired by means of corrections.For the legitimacy of public participation,collective deliberation and other procedures,the court also needs to make judgments according to specific circumstances.