Research On Judicial Review Standards Of Administrative Normative Documents

The Administrative Procedure Law revised in 2014 established the system of incidental review of normative documents,which is of great significance for discovering and correcting irregularities and violations of normative documents,and there are many classic cases,but generally did not achieve the desired effect of the system,many cases even become mere formality,low degree of review has become the primary problem faced by the system,the main reason why the court dare not,will not try is the lack of review standards.The judicial interpretation of the Administrative Procedure Law,which came into force on February 8,2018,has made special provisions for the incidental review of normative documents.Through the analysis of the judicial cases after the implementation of the judicial interpretation,it can also be found that the degree of incidental review during this period is not significantly higher than before.The establishment of a standard system for judicial review of administrative normative documents can provide guidance for courts to carry out incidental review smoothly.Due to the wide range of subjects,diverse forms of expression and different effects of the formulation of administrative normative documents,it is inappropriate to apply a single review standard.By comparing the Chevron principle of strong respect with the Skidmore principle of weak respect,we can establish a review system of"classification+stratification".Horizontally,whether it is clearly classified according to the upper level method;Vertically,the objects of stratification review include the legitimacy and rationality about the subject,procedure and content.When the upper level law is clear,the main standard should adopt the authorization standard,procedure should be legal,the content of explanatory normative documents should be correct,and the content of discretionary normative documents should not be obviously inappropriate.When the upper level law is not clear,the subject standard should adopt the authority standard,procedure should be legal,and the content should be convincing.