Research On The Effectiveness Conflicts Of Other Normative Documents Based On Sunstein's Incomplete Theoretical Agreements

As the basis and tools for administrative department to implement administrative management,other normative documents have played an important role in bridging the defects of statutory law,maintaining local management order and promoting social and economic development,fairness and justice.Due to its extensiveness,complexity,and considerable existence in practice,with the expansion of administrative power and the dispute of interests between the formulating subjects,the deficiencies and conflicts of other normative documents are increasingly prominent,inevitably leading to conflicts between other normative documents and legal sources.In order to curb the effectiveness conflicts of other normative documents,all governments and departments have made a lot of attempts through the formulation of procedural provisions,the introduction of post-evaluation system,the inclusion of public participation and other methods over the years.The State Council had issued a document about strengthening the construction of the government under the rule of law,which states that administrative organs shall formulate other normative documents strictly in accordance with the law,and other normative documents shall not stipulate the matters to be reserved by law or arbitrarily stipulate the rights and obligations of the administrative counterpart different from the law,so as to limit the scope of its formulation from the source.The relevant legal systems of administrative review and litigation also established the right of collateral review,by which means the effect of relief after the implementation can be achieved.In recent years,different provinces and cities have explored and formulated management methods for other normative documents,and constantly strengthened the management of other normative documents.Judging from the recent development of other normative documents in China,we can be sure that the above efforts have alleviated the effectiveness conflict of other normative documents to a certain extent.Unfortunately,for many reasons,these conflicts still exist in a certain range.There are many similarities between Sunstein's incompletely theorized agreements and other normative documents in content.Some standpoints are consistent with the management of other normative documents.Therefore,the author uses some of Sunstein's incompletely theorized agreements which include views on rules and irregularities,views on easing the dilemma between rules and irregularities,and views on eliberating rules democratically for reference to study the effectiveness conflicts of other normative documents.In order to study the effectiveness conflicts of other normative documents,this paper is divided into four parts.The first part to discusses the effectiveness conflicts of other normative documents by introducing a specific case in the field of industrial injury administration,defines the meaning of other normative documents,and demonstrates that there are conflicts between other normative documents and legal sources in this specific case.The second part studies the effectiveness conflicts theory of other normative documents,defines the meaning of the effectiveness conflicts of other normative documents,and reviews the research results of the domestic theoretical circles on it.On this basis,according to the legal effects of other normative documents,its effectiveness conflicts are divided into three categories by type----conflicts of creative administrative normative clauses,conflicts of explanatory administrative normative clauses,and conflicts of guiding administrative normative clauses----and analyzed thoroughly.Then demonstrate the harm of the effectiveness conflicts of other normative documents.The third part summarizes the main contents of Sunstein's incompletely theorized agreements,finds out the feasibility of its application in the study of the effectiveness conflicts of other normative documents,as well as the views on the choice of rules and irregularities,the alleviation of the dilemma between rules and irregularities and the review of rules by democratic means.The four part draws lessons from Sunstein's incomplete theoretical agreements to put forward a solution to the effectiveness conflicts of other normative documents,fully considering the legal order differences of the effectiveness conflicts of other normative documents between domestic and foreign legal environment,in order to provide a basis for improving the standardized management of other normative documents.Firstly,clarify the boundaries of other normative documents,determine the scope of administrative management areas that are suitable for formulating rules and reducing rules,and define the effectiveness and scope of other normative documents.Secondly,enhance the flexibility of other normative documents,appropriately expands the enforcement autonomy of the administrative department when restricting its behavior by applying discretion,and endue the administrative counterparts an option through legislative and other approach.Thirdly,strengthen the intensity of reviewing other normative documents,expand the scope and review authority of the reviewing subjects,clarify the corresponding reviewing contents by distinguishing the details,encourage the reviewing subjects actively exercising its powers by adopting incentive and evaluation mechanism,and apply different strengths of examination standards according to the type of other normative documents.