On The Determination Of "basis" In The Subject Of Administrative Litigation Incidental Review

Article 53 of the Administrative Litigation Law revised in 2014 brings normative documents into the scope of judicial review,establishes the system of incidental review,and makes clear that the object of incidental review is the normative documents that serve as the basis for the administrative act being sued.However,for the identification standard of "basis",there is a lack of in-depth research in the theoretical and practical circles in our country.In this paper,case analysis,literature analysis,normative analysis and value analysis are adopted to study how courts at all levels and theoretical circles identify the basis relationship around judicial cases,analyze the deficiencies and constructively put forward the identification standard of "basis".First of all,the importance of the "basis" relationship is discussed.Our country take the supplementary examination mode means that the court review of regulatory documents must be attached to the specific administrative act,and to be taken as the basis of the specific administrative act of the normative documents review is dependent,the cognizance of the relation on the basis of applicable law in determining the supplementary examination object,unity and the relationship between the jurisdiction power and administrative power are critical.Secondly,the judicial status quo of the "basis" identification standard.The court adopted two methods of formal examination and substantive examination in the trial.But because the examination standard is not the same,can also cause the phenomenon of different cases.The third part is the construction of the criterion of "basis",including the formal standard,the substantive standard and the special case.There are different opinions in the theoretical circles about the identification standard,and it is not comprehensive enough.The author does not agree with some views,such as "direct basis theory".In the end,the author evaluates the existing standards by combining practice and theory,analyzes their shortcomings,and constructively puts forward the substantive standard setting mode,namely positive standard,negative standard and special situation.The affirmation standard is mainly judged from the syllogism of legal application.The normative document is the major premise,the case fact is the minor premise,and the administrative act made is the conclusion.The negation standard mainly refers to the situation that does not conform to the general rules applicable to the law or that the normative documents are misplaced with the administrative action.Special circumstances mainly refer to cases of omission and cases of administrative agreement.In cases of omission,it is necessary to analyze whether the normative documents are the basis of omission.The relevance of administrative agreement cases is cut off due to the disposition of rights.Under this kind of standard setting mode,from the value orientation of regulatory documents attached review point of view,this article advocates to "based on" the judgment of the standard should be appropriate to relax,open the doors of the incidental review,for the position of the other party to determined according to the relationship,will not belong to directly based on the indirect on,the related basis are also included in the attached scope of review,avoid the cognizance of "based on" be accompanied by a stumbling block on the implementation of censorship.In short,the identification of "basis" is an important link that relates to whether normative documents can enter the incidental review procedure,but it is only the first step,as the legality of normative documents still needs further review by the court.Therefore,we should learn from practical experience,adopt a relaxed attitude to identify the "basis" relationship,and let the incidental review system really play a practical effect.