Judicial Review Of Interpretative Administrative Regulations

Interpretive administrative rules,as administrative rules to explain the concept of superior law in normative documents,has a significant and far-reaching influence on civil rights and obligations.With the promulgation and implementation of the judicial interpretation of the “Administrative Procedure Law” in 2018,the judicial review system of normative documents in China has been further specified.However,the judicial review system for interpretive administrative rules has not been further clarified.Its principles and standards of review are all applied to the general provisions of normative documents judicial review,while the scope of judicial review which has been debated abroad has not been clearly defined and selected.Based on the existing provisions of judicial review in China,combined with the principles of administrative law,foreign experience and domestic judicial examples,this paper discusses the judicial review system of interpretative administrative provisions,in order to refine the relevant regulations of the judicial review in interpretive administrative rules.This paper is divided into five parts: the first chapter discusses the necessity of the interpretive administrative rules itself and its judicial review.This chapter first expounds the definition of interpretive administrative rules and discusses the theoretical differences between "uncertain legal concept" and "unified discretion theory" in the act of administrative organ issuing interpretive administrative rules.Secondly,it expounds on the differences between the interpretive administrative rules,the executive administrative rules and the creative administrative rules.Finally,this paper demonstrates the necessity of judicial review from the existing system of judicial review in the interpretative administrative rules and its objective impact on the rights and obligations of citizens.The second chapter discusses the principle of judicial review of interpretative administrative rules based on the theory of administrative law and objective reality.In theoretical side,the principle of administration according to law and the principle of due process in the principle of administrative legitimacy require that the promulgation of interpretative administrative provisions should conform to the legal authority and follow the promulgation procedure;the principle of proportion and equality in the principle of administrative rationality requires that the interpretation of superior law must be under the premise of realizing the administrative purpose.And then choose the interpretation result with the least damage to civil rights,and the homogeneous object cannot be treated differently.Moreover,it is forbidden to change the original interpretation without a legal basis and justified reasons.The principle of human rights protection requires that the interpretation content of the administrative organ should take the protection of the basic rights of citizens as the guiding ideology.In reality,the existing judicial review system stipulates that the judicial review in China belongs to the incidental review.The interpretative characteristics of the interpretative administrative rules require that the interpretative content be faithful to the interpreted content of the superior law.Therefore,it is explicit that the principles of judicial review of interpretative administrative rules are the principle of incidental review,the principle of the faithfulness of interpretation,the principle of legality and the principle of rationality.The third chapter discusses the judicial review standards of interpretative administrative rules.According to legal authority standard and the deny authority to regulatory cases,which determined by the judicial interpretation of the“Administrative Procedure Law,” it clarifies the standard of legal authority to explain the classification review due to different legal ranks.According to the legal standard of the procedure,it is clear that all judicial organs shall review according to the provisions of the region on the formulation of normative documents.According to the standards of compliance with the superior law,no violation of law to derogate from civil rights,the interpretation method of the administrative organ determines the review standard from the perspective of the meaning,system,purposiveness and constitutionality.The fourth chapter is about the scope of judicial review and its range of application and the case study of the scope of judicial review in China.Referring to the theory of "margin of judgment" and the academic research experience,this paper puts forward the criteria of whether the judicial organ recognizes that the administrative organ has the margin of judgment in the relevant fields when examining the interpretative administrative rules,whether the interpretation of legal elements is firmly owned by judicial organs and interpret the uncertain legal concepts as the standard.The intensity of judicial review is divided into the light review,moderate review and strict review.the light review is limited to the highly specialized administrative field,internal administrative field,national examination field and ethnic autonomy field.While moderate and strict review are not limited because they only reflect different judicial attitudes in nature.Based on the analysis of representative judicial cases in China,it is concluded that judicial organs tend to use moderate review,but some judicial organs also tend to use the light review in general administrative fields.Chapter five discusses two special procedures of judicial review.First of all,it analyzes the reasons why the existing judicial interpretation stipulates that the judicial organ should listen to the administrative organ to make relevant explanations,and it also explains the provisions that the administrative organ has the right to explain the reasons to the judicial organ.It is concluded that the legislators imply that the judicial organ should consider the interpretation purpose and special administrative purpose of the administrative organ when reviewing the interpretative administrative rules and that there is an indicative tendency of moderate review in the selection of review intensity.Secondly,it elucidates that the judicial organ can choose to apply the legal and effective rules and other normative documents.According to the systematic analysis of the law,it holds that the law sets up the judicial organ's active review procedure.