Normative Documents Accompany Review Criteria Studies

The incidental examination of normative documents is a major institutional innovation in administrative litigation,which breaks the original examination mode of hearing administrative ACTS made by specific counterparts and opens up new examination contents for administrative litigation.The implementation of the new system,from a certain point of view,expands the scope of accepting cases of administrative litigation,and provides a new way to remedy the protection of rights of administrative counterparts.However,with the progress of incidental review,difficult and complex issues emerge in an endless stream,especially in the standards of incidental review of normative documents.At present,the relevant legislative and judicial interpretations have vague provisions on the launching standards of incidental review of normative documents,single and non-specific provisions on the content standards of incidental review and lack of operability,and the content review standards only stipulate the identification standards of illegal normative documents.According to "about for the interpretation of the < law of the People's Republic of China on administrative proceedings >"(hereinafter referred to as the "administrative procedural law interpretation)the 148 th regulation,if use the legitimacy of the special examination standards,only for permissions,resistance and so on four kinds of situations to review of regulatory documents,does not seem to be legislative intention,narrowing the scope of the incidental review,unreasonable legal,with local law doesn't fit the environment of the normative documents review out of the door;If the broad criterion of substantive legality examination is adopted,it lacks the corresponding legal basis and judicial interpretation support,so it can only explore the broad interpretation of the examination standard in judicial application,but it has a high career risk.Due to the lack of specific examination standards in specific case handling by judicial staff,and in order to avoid risks,the judgment documents are simple in reasoning,poor in persuasiveness and unsatisfactory in examination effect.The core problem of collateral review is the establishment of review standard.A single review standard can no longer meet the needs of new types of cases to the judicial reality.Based on normative documents attached review standard as the research object,the introduction of relevant theories to analyze review standard,normative documents as the starting point,on relevant concepts with censorship,review standards to make detailed analysis,by using the theory of tolerance sex theory and checks and balances in normative documents attached review standards to provide theoretical support.Furthermore,it puts forward the standard of pluralistic incidental examination in accordance with China's judicial practice.It is advocated to use the launching standard of incidental review to solve the introductory problem of incidental review of normative documents,and to use the content review standard to solve the core problem of incidental review.It is hoped that the traditional single standard of legality examination can be broken and a diversified system of collateral examination standards can be established gradually.On the one hand,it provides useful reference for the authorities to make detailed provisions on the review standards attached to normative documents.On the other hand,the author hopes to find out a legal method that not only conforms to the current legal provisions but also can solve the problem of single incidental review standard and fuzzy application details through interpretation theory before the standard of interpretation of review standard is issued.