On The Judicial Review Standards Of Administrative Normative Documents

Articles 53 and 64 of the Administrative Procedure Law stipulate a judicial review system for administrative normative documents.The construction of judicial review standards for administrative normative documents is an important issue in such litigation.Article 148 of the 2018 Interpretation of the Supreme People's Court on the Application of the "Administrative Procedure Law of the People's Republic of China" specifies five situations in which administrative normative documents are illegal.These five situations mainly evaluate the three requirements of the authority,content and procedures of administrative normative documents.Before conducting the legality review of administrative normative documents,it should be reviewed whether the administrative normative documents are the basis for prosecuting administrative actions,that is,relevance review.In judicial practice,the court held that administrative normative documents must be "direct basis".The existence of administrative normative documents should directly affect the rights and obligations of the administrative counterpart,otherwise the court will not review.The "direct basis" standard leads to an artificial narrowing of the scope of administrative normative documents that can be reviewed.Not conducive to the supervision of administrative normative documents."Relevant basis" should be used as the review standard to relax the determination of relevance.The review of authority can be divided into the review of the legal authority of administrative subjects and the review of statutory authorization.The specific method of judging whether the administrative subject exceeds the legal authority and the legal authority that can be exercised by other departments is to reverse the inference from the result and see whether the administrative normative document sets new rights and obligations.The review of statutory authorization is mainly to determine whether there are authorization clauses,whether the authorization clauses are valid,and whether the provisions of administrative normative documents exceed the scope of authorization.Because the terms of authorization are generally too general,it is difficult for the court to judge whether the provisions exceed the scope of authorization.Therefore,we should focus on examining whether the administrative normative documents have authorization clauses and whether the authorization clauses are valid.In the absence of specific authorization provisions,the court has considered social effects too much and chose to recognize the general authorization of administrative duties in the Constitution and laws as the basis for authorization,so that administrative normative documents that should be deemed to exceed the authority are deemed legal.Judicial protection is the social order formed by legal administrative normative documents.The court should give up its recognition of the general authorization.Administrative normative documents must not violate the legal procedures.The legal procedures here have a degree of limitation and must reach a serious level.Whether judicial procedures are reviewed in judicial practice depends on the plaintiff 's request.The courts generally focus on formal review,and regard the legality of procedures as an argument to strengthen the overall legality of documents.The reason why the program elements as evaluation criteria are difficult to be put into practice is that China does not have a unified procedure for the formulation of administrative normative documents.In addition to the clear legal provisions,it is difficult for the court to determine which situation is a serious violation of the procedure.In addition,judicial review is limited,and the overall legality of administrative normative documents is also a major reason for the court's review of administrative normative document formulation procedures.As far as content review is concerned,it is mainly the application of nonconforming standards.From the perspective of practice,non-contradiction with the higher-level law can be divided into non-contradiction with the principles of the higherlevel law and non-conflict with the rules of the higher-level law.Principles emphasize the rationality of content,and rules emphasize the legality of content.Distinguish between creative administrative normative documents and explanatory administrative normative documents,and apply different review rules on this basis,which can solve the problem of unclear content review standards in current judicial practice.The review of creative administrative normative documents mainly depends on whether the content contradicts the principles of the higher-level law and whether related prohibition items have been added.The review of interpretive administrative normative documents mainly determines whether the content conflicts with the specific provisions of the higher-level law and whether it has produced new legal effects.