Feasibility Study Of Administrative Trial Reference To Practice

China is deeply influenced by the tradition of written law,the people's court usually hears administrative cases on the basis of statute law,but practice as the source of unwritten law,it plays an irreplaceable role in the field of administrative management.In the practice of administrative trial,a large number of the facts of the application of the practice for a long time have shown the judicial application value of the practice.However,in the current theory and system design,it does not involve the important content such as the status of practice in the administrative trial.The contradiction between the actual demand and the absence of the system causes a series of problems,such as the fate of "different judgments for the same case" in many cases,which seriously damages the judicial justice and judicial authority.In the face of severe reality,the system idea of putting the practice into the basis system of administrative trial is on the horizon.Specifically,it is to establish the system of administrative trial reference to practice.This paper discusses the feasibility of administrative trial reference to practice from the following four parts:The first part explores the jurisprudential basis of the administrative trial reference to practice,mainly looking for the feasibility of the logical premise of the administrative trial reference to practice.First of all,the article straightens out the conceptual relationship between practice and custom,convention,customs and customary law,and sums up the elements of practice by extracting their "common factors".Secondly,with the help of the theory related to the source of law in the philosophy of law,the article draws the preliminary conclusion that the practice can be included in the basis system of administrative trial,which comes from the normative nature of the practice itself.Thirdly,the article analyzes the normative nature of the practice from the perspective of the practice as a kind of norm.Finally,the article analyzes the applicable conditions of the practice from the perspective of form and substance.The second part demonstrates that the administrative trial reference to practice is accepted by the existing system in China.This part provides two perspectives,that is,the legal provisions provide the entry point,the empirical study of the applicable practices in administrative trials and the institutional practice with Chinese characteristics provide good examples.First,from the perspective of legal provisions,we can find the entry point to incorporate the practice into the administrative trial basis system in the constitution,relevant constitutional laws,laws and judicial interpretations,and there is no difficulty in legal system acceptance.Second,after an empirical study of the current situation of the application of practice in administrative trial,it is found that the reference to practice of administrative trial is contained in the practice of administrative trial in China,especially the attitude of the Supreme People's Court towards practice is shown by publishing typical cases.Meanwhile,it combs the institutional practice with Chinese characteristics from the two levels of the state and the folk,which provides a good example for the administrative trial reference to practice,and also provides "institutional convenience" and folk wisdom.The third part describes the obstacles to the operation of administrative trial reference to practice.This part is illustrated from three aspects with examples.First,the contents of the practice are complex,lack of classification and uneven quality.Secondly,the legal status of practice is not clear.Third,the practice is abstract and fuzzy,so it is difficult to carry out effective judicial identification.The fourth part points out the system requirements of administrative trial reference to practice.This part starts from five aspects.First,establish a system of practice compilation and disclosure in the pilot provinces.Through the establishment of the practice compilation system,the form of the practice is standardized,the practice is classified,the content of the practice is clarified,and the value of the practice is evaluated,so as to eliminate the "bad practices".In the establishment of the practice disclosure system,this paper advocates the gradual transition from disclosure according to application to active disclosure.Secondly,the complementary law source status of practice should be clarified.This paper argues that we should first establish the system of administrative trial reference to practice,and then clarify the complementary source status of practice on the basis of consensus;at the same time,we should take "reference to the compiled and open practice" as the principle.Third,establish the evaluation and withdrawal system of practice application.Fourth,we should make clear the applicable order of the practice,including the applicable order of the practice and the source of the written law,the applicable order of the practice and the source of the unwritten law.Fifthly,we should establish a system for settling differences in the application of practice.