Study On The Judicial Issues In The Incidental Review Of Administrative Normative Documents

Although the rank of administrative normative documents in the whole legal system is very low,its influence and role in judicial practice is huge.Due to the current administrative normative documents attached review system is not very perfect,so there are many problems in the current judicial practice.In order to solve the problem of the attached examination system of administrative normative documents,it is necessary to discuss and study the starting procedure,trial standard and follow-up treatment.On the starting procedure of the incidental review of administrative normative documents,many courts adopt evasive strategies.Based on the “relevance” standard and“different period” exclusion of administrative normative documents into the administrative proceedings,in order to protect the original legislative intent,so that administrative normative documents can enter the administrative proceedings into the field of vision of judicial review,we should strictly adhere to the relevance standard,and use the definition of “substantive elements”and “formal elements” to regulate the relevance standard.We should study whether the court can hear the administrative normative documents.At the same time,the court should not use the objection period to evade the review,should be tolerant of the “just cause”,solve the problem of the court’s“willing or not” trial,and establish the court’s active identification mechanism for administrative normative documents.In the trial procedure of incidental examination of administrative normative documents,the standard of examination is very vague.The judicial interpretation of the existing administrative procedure law stipulates the examination standard of the attached examination of administrative normative documents: it shall not conflict with the superior law,the formulation procedure is legal,and it does not exceed the authority.But in practice,the standard of legality is usually replaced by the standard of non conflict in administrative normative documents,which is simply to use the standard of“non conflict” to try administrative normative documents.Therefore,in order to solve this problem,we should build a compound layered review standard system.First,we should focus on the review of the legal elements to judge whether the administrative normative documents are in line with the provisions of the law.Secondly,after the examination of the legal elements,we should carefully examine the rationality of the administrative normative documents: whether it conforms to the purpose of the administrative organ to formulate the normative documents,whether it exceeds the authority of the administrative organ,and so on.There are also many problems in the follow-up to the review of normative documents.For example,the court level of administrative normative documents incidental review is low,the effectiveness of judicial recommendations is insufficient,and the scope of non application is narrow.In order to solve this situation,the court that accepts the supplementary examination of administrative normative documents should be improved.The Supreme court should be the main body of judicial proposal,which will increase the effectiveness of judicial proposal,and thus improve the effectiveness of subsequent processing of the supplementary review of administrative normative documents.