An Empirical Study On The Incidental Judicial Review Of Administrative Normative Document

As of now,the court do not have the authority to directly review the validity of administrative normative documents.However,when reviewing the legality of a particular administrative act,it is possible to determine whether the document is applicable or not in the case through an incidental review of the administrative normative document on which it is based.As a new system established by the Administrative Procedure Law and its judicial interpretation,the judicial review of administrative normative documents is of great significance to protect the legitimate rights and interests of administrative counterparts,prevent administrative organs from continuing to make unlawful administrative acts and resolve administrative disputes.In the nearly four years since the implementation of the judicial interpretation,a large number of administrative litigation cases related to administrative regulatory documents have emerged in China’s judicial practice,posing new issues to the court’s administrative litigation trial work.The analysis of a sample of 313 selected adjudication documents that have come into effect provides a complete picture of the effectiveness of current judicial trials in incidental review cases.In terms of its positive effects,this system operates both to respond effectively to the claims of administrative relators and to expand the scope of judicial review;In terms of its shortcomings,there are still problems such as too high identification standards for administrative normative documents,too strict identification of the “basis” relationship,lack of application of “justification”,inconsistent standards for legality review,and poor follow-up treatment,resulting in administrative normative documents reviewed for legality rarely being found unlawful,which to a certain extent hinders the implementation of this system.In order to solve the existing problems,it is necessary to improve the system from various aspects,such as determining the criteria of administrative normative documents,relaxing the criteria for determining the relationship of “basis”,allowing courts to clearly apply “justification” by fulfilling the obligation of explanation,unifying the benchmark of legality review,and constructing a benign mechanism for follow-up,so as to promote the transformation of the judicial review system of administrative normative documents from contingent to actual.