Research On Attached Review System Of Normative Documents

Articles 53 and 64 of the Administrative Litigation Law revised in 2014 established my country’s unique regulatory document incidental review system,giving the court limited supervision over some abstract administrative acts.At the beginning of the establishment of the system,people placed high hopes on regulating normative documents from the root and solving the legality of specific administrative actions.However,its specific operation status and whether it is consistent with theoretical discussions and legislative expectations still need further observation.It has been more than five years since May 2015,and there have been a lot of trial cases about the system of incidental review of normative documents.Through a comprehensive review and summary of these cases,the author observes the actual operation of the system and the judge’s judgment thinking.Combining with the time-based theoretical research of the system from 2000 to the present,it sorts out and analyzes the problems in practice,so this article adopts the argumentation line of "theoretical combing-empirical analysis-perfecting suggestions".This article has four chapters besides the introduction and conclusion.The first chapter is the theoretical combing.This part defines the connotation and extension of the normative documents of the research object of this article to determine the starting point of the research of this article.It also summarizes the three modes of judicial review of normative documents discussed in the academic theory before the revision of the law in 2014: one is to be included in the scope of administrative litigation for direct review;the second is to be included in the scope of administrative litigation for incidental review;and the third is not to be included in the scope of administrative litigation.The scope of the case is subject to incidental review.On the basis of the past academic discussion and trial practice,the attached review of the normative documents confirmed by the current legislation has developed,established the mode of attached review,added the provision of judicial suggestions by the court,and increased the interaction between the judicial organ,the administrative organ and the filing organ.Under the incidental review mode,the legislative purpose of regulatory documents is also different from the previous theoretical discussions.Regarding the legislative purpose,the author has summarized three viewpoints in the academic circles: the theory of private rights protection;the theory of strengthening judicial supervision;the theory of double value,analyzes and puts forward the viewpoints of this article.The author believes that the dual value theory is desirable.The legislative purpose of the regulatory document with the review system is not only to completely resolve disputes in individual cases,and to fully protect the subjective litigation of administrative counterparts,but also from the source.Reduce the objective litigation orientation of illegal normative documents.The second chapter is the study of empirical cases.This part comprehensively sorts out and analyzes the cases related to the review system attached to the normative documents,and displays the practical operation status of the system and the general review ideas of the court in the form of charts.It reflects in detail the approach of the court from accepting incidental review cases to conducting effective legal review of regulatory documents,and summarizes all the acceptance and the reasons for not reviewing.At the acceptance stage,the administrative subject’s review and supervision behavior is worth noting;after acceptance,the review and supervision mainly include four major reasons: non-statutory reviewable regulatory documents,exceeding the statutory review period,not the basis for the sued administrative actions,and other reasons.On the whole,the court’s review of normative documents has gone through the four major stages of "acceptance of prosecution-initiation of review-effective legality review-follow-up processing".The court’s understanding of legal provisions and judicial interpretations applies during the stages of acceptance of prosecution and initiation of review.Objectively,many procedural obstacles have been set up,which can be described as layered cards,so that there are very few regulatory documents that can finally enter the substantive and effective legality review,making the revision of the administrative procedure law set up regulatory documents with review system to achieve the legislative goal.Can’t be achieved very well.Chapter 3 and Chapter 4 focus on the legislative purpose of the normative document with review system,combined with the current operating status of the trial practice,and put forward corresponding suggestions on the improvement of the review rules of the court in the judicial review process.The third chapter is the suggestions for the improvement of the court’s procedural review rules.It puts forward that the court should have a tolerant attitude in the judicial review at this stage,remove the artificially set barriers for the normative documents to enter the effective and legal review,and do not set various procedural obstacles for the incidental review of the normative documents.In the stage of acceptance: as long as there is a formal attached review,it should be accepted,except that the administrative act is not actionable,there should not be too many restrictions on the acceptance conditions,and the administrative subject’s review and supervision behavior should be auditable.In the stage of starting the review,the court should give a lenient explanation to the "just cause" of the time limit of the review;The court should take the initiative to help the parties to clarify the specific terms of review and take the initiative to undertake the responsibility of review;The establishment of the "basis" relationship stipulated in Article 53 of the administrative procedure law should be leniently recognized,only excluding the normative documents that obviously do not have the basis relationship.The basis should be understood as the relevant basis,and the judgment of the basis relationship only requires loose relevance.Chapter Four discusses the issues that the court should pay attention to when reviewing the legality of normative documents.In the effective legality review,the author discusses review principles,content review and procedural review.The review principle should be independent and neutral.The content review should include whether the rules conflict with the review and whether the principle conflicts with the review.Complex procedural issues and strong policies should be considered.The regulatory documents of the People’s Republic of China shall be submitted to the formulation agency and the filing agency for processing through judicial recommendations.Finally,on the one hand,it is necessary to establish a supervisory mechanism for the supervision of normative documents by higher courts and authorities,and conduct assessment and supervision of cases in which the court abuses the review conditions to evade review and fails to actively send judicial advice after the review is unlawful.On the other hand,it can strengthen the effectiveness of judicial suggestions,give judicial suggestions the power to initiate the record review,further strengthen the pivotal role of the incidental review of normative documents,and fully realize the legislative purpose of the incidental review of normative documents.