On The Judicial Review Of Major Administrative Decisions

Provisional Regulations on the Major Administrative Decision-making Process was implemented from September 1st,2019.The major administrative decision-making system which it established is an important system to promote the legalization of administrative decision-making,and the system is also an important link in the construction of a government ruled by law,reflecting the requirements of the modernization of national governance system and governance capacity in the field of administrative law.The supervision of major administrative decisions should be investigated from two aspects: internal administrative procedures and external supervision procedures.On the one hand,we can rely on the internal procedures of administrative organs to supervise administrative decision-making,and strengthen the scientific,democratic and legal attributes of administrative decision-making by means of expert argumentation,risk assessment,legitimacy review and public participation,so as to avoid arbitrary administrative decision-making.On the other hand,we can rely on external mechanism to supervise the major administrative decisions.Administrative organs should not be the only referee of administrative decisions,instead,the administrative decisions should be supervised from outside.In the aspect of external supervision,it is necessary to attach importance to the supervision function of judicature on the major administrative decision.The judicial organs in China include the people’s court and the people’s procuratorate.The people’s court is neutral and administrative litigation is negotiable.It can play a supervisory role by judicial review of major administrative decisions.The people’s procuratorate has made great achievements in the field of public interest litigation.It is also an effective and mature way to supervise major administrative decisions by using procuratorial suggestions and administrative public interest litigation.Judicial review of major administrative decisions can be divided into two types:public interest litigation and private interest litigation.The way of review can be incidental review to avoid excessive judicial intervention in administrative affairs.Of course,for major administrative decisions,it is necessary to judge whether they can be reviewed and the intensity of the review.It is not appropriate to review them in the one-size-fits-all way.The people’s court should focus on reviewing the formal legitimacy of major administrative decisions,exercise restraint on the substantive legitimacy,and avoid reviewing administrative professionalism and policy.In principle,the people’s court can only conduct legitimacy review.When it has legal basis,it can conduct limited rationality review to examine whether the content of administrative decision-making is obviously excessive.