Research On The Incidental Review System Of Administrative Normative Documents

The “Administrative Procedure Law” amended by China in 2014 stipulates a system for the review of administrative normative documents.And then in 2018,the “Interpretation of the Supreme People's Court on the application of the ‘Administrative Procedure Law of the People's Republic of China'”also set up a special chapter to refine and improve the review system for administrative normative documents.However,there are still many problems in this system.First,only the plaintiff in administrative litigation has the right to request for review of administrative normative documents when prosecuting,and the third party in administrative litigation,which is also in the status of pending relief,has a similar status as the plaintiff,and has no right to file this claim when the plaintiff does not file a request for review.Second,the lack of litigation rights of the administrative normative document-making organs,which makes its low participation in the entire review process,and this is not conducive to maintaining the authority of the administrative normative documents and the legitimate rights of the organizing organs.Third,the legal binding force for the determination of the legality of regulatory documents in the current collective review system needs to be strengthened.Fourth,the judicial recommendation right and the filing system after the review of the people's courts alsohave room for improvement in their supervision and effectiveness.In response to the problems above,the current review system for administrative normative documents needs four improvements.First,the third party in administrative litigation should be included in the subject category that has the right to request the people's court to review administrative normative documents together to protect their litigation rights and other legal rights better.Second,when the enacting organ of administrative normative documents is different from the defendant in administrative litigation,the enacting organ may participate in the litigation as the third party in the administrative litigation to ensure the comprehensiveness and accuracy of the incidental review by the people's court,and at the same time fully implement the right of reply of the enacting organ.Third,after reviewing administrative normative documents together,the people's courts can make appraisal judgments on their legality issues,so as to improve the accuracy of the court's determination of the legality of regulatory documents within a reasonable range.Fourth,on the basis of the third point,it stipulates that the court shall be obliged to submit judicial advice to the enacting organ after the judgment takes effect.In addition,the people's courts have the right to submit judicial recommendations to the organs with the right to revoke the reviewed regulatory documents,urging them to urge the formulating organs to make self-amendments,or to directly make revocation andchange decisions to strengthen the judicial review of the incidental review system intensity.