Research On Administrative Convention In Judicial Review

This article,from the perspective of judicial review,researches administrative convention and analyzes 200 judicial verdicts.These cases give us a picture of how to review the establishment,effectiveness and nature of administrative convention.Secondly,by reflecting on the interaction between the existing discussion and practice in the academic circle,we can improve the theory of administrative convention.Thirdly,with the combination of theoretical integration and typical case analysis,a preliminary analysis framework is formed on how to review administrative convention and determine their orientation in administrative law.Although the judicial practice carries out the active review of the administrative convention,in a single case,judges have different understanding of the administrative convention.The establishment of the administrative convention are inconsistent,and the reasoning lacks explanation.If source of law is not limited to the norm which is made or recognized by the state according to the legal procedure,then the administrative convention has the same status of source of administrative law.The administrative convention forms in a non-statutory law,and obtains the stable and applicable "customary rules" through the accumulation of cases,which has the binding force across the procedures.Unlike administrative customary law,administrative convention does not need the public to form a "conviction of law".Administrative convention does not need to be confirmed by the judgment of thecourt or take legitimacy.Combined with the analysis of the case from Wu Xiaoqin,the establishment of administrative convention,including the lack of explicit provisions in statutory law,are formed by the administrative organs through long-term and repeatedly universal application in administrative governance.At present,multiple parties can put forward administrative convention,aiming to support their appeal on the basis of legitimacy.Subject to the nature of the administrative convention,the burden of proof and its position in the administrative litigation is still controversial.Combined with theoretical analysis,the status of administrative convention in judicial decisions is similar to the "administrative regulations",which belongs to the "common law" in the administrative regulation.It is only a reasoning foundation of the legality of administrative act and needs to accept the judicial review.The effectiveness of administrative convention is implied in the legal principles such as administrative self-restraint,equality and trust protection.As a supplementary source of statutory law,it follows the rule that statutory law source is superior to administrative convention.The level of effectiveness between administrative convention needs to be judged under specific circumstances,referring to the nature and level of the institution forming or confirming administrative convention,as well as the region and industry forming administrative convention.The effectiveness review of administrative convention mainly confirms the legitimacy of administrative convention and the handling of illegal practices.In many judgments,the court lacks sufficient reasons for the legality of administrative convention.Referring to the review system attached to administrative documents,the academic circles put forward the three review standards——purport,rationality and legality,which are required to conform to the principles of legislative spirit and good behavior,but the standards are relatively broad.The review rules of the effectiveness of administrative convention are "not in conflict with the existing law and have administrative rationality"."Not in conflict with the law" refers to the spirit and principle that does not violate the mandatory legal norms,increase the citizen's obligations or reduce their rights,and does not violate the law."Having administrative rationality" can be considered from the principle of administrative efficiency,compliance with law enforcement law and spirit,the protection of the relative person's rights.To sum up,through the analysis of the review process of administrative convention in judicial decisions,the judicial application of administrative practices is still in the initial stage,and its review and judgment criteria have not been clearly expressed,which shows insufficient reasons.Administrative convention is double-edged: the advantage is reflected in respect for the professional judgment of administrative organs,which can be the basis for explaining reasons of administrative actions in administrative confirmation and administrative discretion activities.However,the generation of administrative convention is closed,which can cause discretion sloth,so its function cannot be overestimated.Therefore,the administrative convention should be incorporated into the law and become the "soft law".After the promulgation by the administrative organ or the confirmation by the court,it may serve as a supplementary basis for the legality of the administrative act.At the same time,administrative convention is an important influencing factor in the explanation of administrative discretion.In view of the lack of unified application procedures and standards of current administrative convention,it is also possible to standardize the application of administrative convention in administrative discretion by means of judicial review mechanism of administrative discretion.