The Practical Dilemma And Solutions To The Incidental Review Of Normative Documents In Administrative Trials

The pre-conditions,the standards,the intensity and the consequences of the examination attached to the normative documents are a subject of endless discussion,The pre-conditions,the standards,the intensity and the consequences of the examination attached to the normative documents are a subject of endless discussion,both academic and substantive circles have produced many results on the issue of incidental review of normative documents.During the epidemic prevention and control period in 2020,local governments have promptly formulated normative documents to respond to the expectations of the people and prevent the epidemic from spreading further.Whether these documents violate the principles of legality and proportionality,and the existence of unreasonable restrictions on the basic rights of citizens.Due to the People’s Court’s extremely restrained attitude towards the incidental review of such normative documents,the public has questioned the People’s Court’s ability and willingness to review the legitimacy of normative documents,so the legitimacy of the whole system has been overshadowed.As a new system,the system of incidental review of normative documents has been greatly expected by the academic and judicial circles since its birth,hoping that through the judicial review of normative documents,to restrict the Executive Branch from infringing on the legitimate rights and interests of citizens by making normative documents,to urge the executive branch to amend normative documents through judicial review,to reduce the emergence of administrative disputes at the source,and to urge the executive branch to administer according to law,safeguarding the legitimate rights of citizens.This paper analyzes the current situation of the incidental review of normative documents in judicial practice with the help of the cases published by China Judicial Documents Network and Peking University magic weapon,as well as the related cases in which the author has participated in the trial,finding that there are generally problems such as less entity review,insufficient depth of review and weak implementation of the consequences of review,and seeking to find the difficulties and painful points in judicial practice of incidental review of normative documents,under the background of imperfect laws and regulations,insufficient judges in administrative trial,insufficient personnel training and weak judicial-compulsory administration,the system of incidental review of normative documents has not played its due role.Therefore,the problems that the system of incidental review of normative documents faces in judicial practice and its causes,and how to perfect them all deserve further study.From the internal point of view,it is necessary to reasonably identify the pre-conditions of the review attached to the normative documents,construct the new standards of the review,and realize the efficient and effective results of the review,so that the paper-based review of the normative documents can be transformed into the power in action.Externally,the establishment of a unified system for the registration of requests for the review of the legitimacy of normative documents,the two-way flow of personnel through administrative proceedings and administrative law enforcement,and the combination of an incidental review of normative documents with a review for the record,to provide strong support for the system of incidental review of normative documents.