An Analysis Of The Judicial Review Standards Conflicting Regulatory Documents With Higher Laws

The revision of the new The Administrative Litigation Law in 2014 established a system of incidental review of regulatory documents,from which the incidental review of regulatory documents entered a legal stage.Article 148 of Interpretation of the Supreme People's Court on Application of the Administrative Litigation Law of the People's Republic of China stipulates that a regulatory document conflicting with a higher law is one of the situations where the regulatory document is illegal.At the same time,a large number of cases with judicial review of the legality of regulatory documents have appeared in judicial trials.However,at the theoretical level,how the courts review normative documents conflicts with higher law,in particular,during this review process,the court's research on whether to use different review standards for different types of cases is still very weak.The related cases published by the Supreme People's Court reflect that the Supreme People's Court has applied different review standards to the review of regulatory documents against the superior law in cases of order administration,benefit administration,and house expropriation compensation.Specifically,in order administrative cases,due to the high density of higher law and most of the legislation of citizens' basic rights,the court adopted strict review standards when reviewing,that is,as long as the content of the normative document violates any clause of any higher law,the normative document can be deemed illegal.In the administrative case of benefits,due to the low density of the higher law and the application of the principle of legal retention,therefore,the court usually holds that as long as the content of the normative document is reasonable,the normative document can be determined to be legal.In housing expropriation compensation cases,the court's review standards vary.If there are specific measures for compensation for house expropriation in this area,and the normative documents are mostly enforcement regulations,the court thinks that the normative documents can be determined as long as they are filed.If there is no specific method for compensation for house expropriation in this area,the court held that as long as it does not violate the higher law and conforms to the actual situation in the local area,generally,the review should be conducted in conjunction with the counterpart's litigation request.If the counterpart has no evidence and cannot submit specific provisions that violate the higher law,the court generally considers that the normative documents are legitimate.If housing expropriation compensation cases involve public interest,etc.,the court usually conducts scrutiny and uses the provisions of the higher law as the boundary.Only when the content stipulated in the normative document falls within this boundary,the normative document can be deemed legal.Order administration,benefit administration,and house expropriation compensation,there are significant differences in the tasks,administrative discretion,and legislative model of administrative organs,determining the role of judicial power in supervising administrative power,and ultimately affecting the review standards of judicial organs.