The Study On Incidental Review Of Normative Documents

The amendment of administrative procedural law planed to establish the incidental review of normative documents,which is a huge progress in this amendment.The incidental review is quite different from judicial trial.There are no standards to be applied to operate this law.Thus,the courts need to make unified rules to eliminate the requirements for review,review procedure,standard of reviewing,the intensity of review,the methods to review.Only if these problems solved,can the system be efficient.Zhejiang province always is pioneer of the exploration of new litigation system.This thesis select fifty cases from Zhejiang courts to analyze how the courts applied reviewing of normative document.These case come from Zhejiang Province since the new administrative came into effect.After study,we find that there are a lot of problems while the courts trying to operate this system.During the process of applying,due to the difference of requirements and understanding of incidental review,the courts replied to the applications differently.The lack of answer from the governments raised the difficulty to identify the normative documents.There is no single part in court for incidental review and no standards or procedure can be followed.At last,while the document is illegal,the courts can only abandon it as a basis of administrative act,but can nor declare the document illegal.In this article,through induction start of incidental review,we think it should expandan the interpretation of "application" and let more normative documents can be reviewed,according to the original intention of this new law.Meanwhile it should determine the scope of the review.Analyze the difference between the trail of administrative act and the review of normative documents through analyzing the supplementary of incidental review.And evidence review should be different from judicial review.Combining with the particularity of the administrative litigation procedure,it is the gavernments that take the responsibility to prove and explain.Based on the existing laws and rules,such as filing and inspection procedures for laws,rules,regulations and regulatory documents,and some experience abroad,we can build our system of standards and procedure.Follow the principle of legitimacy,and combined with the judicial supervision of the right of abstract administrative act.Set up a special part for incidental review and absorb suggestions from expets.Finally,it is important to emphasize the making and presenting of judicial proposals,and give full play to the guidance of judicial advice on the creation and implementation of normative documents.