On The Judicial Application Of The Theory Of Norms Of Protection In China

In 2017,Liu Guangming Case First cited the theoretical standards of protection norms to determine the qualifications of administrative litigation plaintiffs,providing a new "interest" criteria.The theory of post-protection norm is often cited to determine the qualification of administrative third-party plaintiff,and one of the important fields of its application is the neighboring case.In order to further explore the judicial introduction of the theory of norms of protection and how to apply it concretely,this article takes the neighboring case as the breakthrough point to launch the concrete discussion,also aims at providing the reference for the other third party plaintiff qualificationIn order to further explore the judicial introduction of the theory of norms of protection and how to apply it concretely,this article takes the neighboring case as a starting point to launch a specific discussion,and also aims to provide reference for other third-party plaintiff qualification.In the neighboring case,different from the existing "infringement of legitimate rights and interests","adverse impact","actual impact" and other interest determination standards,the standard of protecting norm theory turns the determination of "interest" to the determination of "subjective public right",which has the advantages of clear and specific thinking and limiting the judge’s arbitrariness.However,there are many theoretical disputes about the judicial introduction of the theory of protection norms.The two main points of dispute are:First,whether the judicial application of the theory of protection norms has the system and theoretical basis;The second is whether the judicial introduction of the theory of protection norms can produce good effect.In addition to the academic disputes,there are also some applicable problems in the neighboring cases,such as "the application of the theory of protection norms is ignored","the theory of protection norms is mixed with other standards","you interpret the disputed norms more strictly",etc.,therefore,the application of the theory of protection norm in our country is in a double predicament of theory and practice.In view of the academic controversy,this article holds that the theory of protection norms can be introduced into our country to determine the plaintiff’s qualification.First of all,our country has the system and theoretical basis of judicial application of the theory of protection norms: Our country’s administrative litigation at least insists on the role of subjective litigation;From the Constitution and other public law norms,we can also infer that there is a public law view of rights in our theory,and the individual has a passive and passive legal status on the plaintiff qualification.Secondly,the standard of the theory of protection norms is not perfect,but compared with the standard of the existing interests,it leads the identification of the interests to the purpose of the general law norms,and provides a clear and stable analytical thinking And get rid of the "point number of silver coins" approach,the plaintiff qualification and substantive law norms link up,providing a dynamic,open judgment ideas.To sum up,the author thinks that it is reasonable to introduce the theory of protection norms into our judicial practice and neighboring cases.In view of the practical problems,this paper re-analyzes the judgment thinking of Liu Guangming’s case and related cases,and finds that although the judgment of Liu Guangming’s case gives a detailed explanation to the theory of protection norms,however,it does not provide a clear and operational analysis framework for the subsequent judicial practice to provide clear guidance.The lack of a unified analytical framework for the judicial application of the theory of protection norms directly causes the problems such as some confusion of reasoning,lack of argumentation reasons and severe interpretation methods when judges cite the theory of protection norms to determine the standing of the plaintiff of the neighboring party,makes the neighboring plaintiff’s qualification argument unconvincing.In order to solve the above problems,it is necessary to put forward a unified analysis framework of judicial application of the theory of protection norms.Therefore,based on the experience of other legislation,combined with our theoretical research and judicial practice,the reasonable "three-level" analysis framework is chosen.This article uses the "three-level" analysis framework and the neighboring cases to discuss its connotation: 1 the first level confirms the legal norms on which the Administrative Act of dispute is based.It is necessary to define "what kind of legal norms can be regarded as the dispute norms" and "the concrete confirmation path of the dispute norms" 2 The second level,based on the confirmation of the dispute norms,comprehensively utilizes various legal interpretation methods,in order to clarify the aim of the protection of the norms of dispute,the author interprets the norms of dispute.Whether to protect the private interests of the neighboring persons in addition to the public interests;3 the third level is to confirm whether the neighboring persons are protected by the disputed norms.That is,whether the plaintiff is within the specific protection scope of the dispute norms,and whether the rights and interests of the plaintiff’s claim for protection and the rights and interests protected by the dispute norms belong to the unified type.