Research On The Existing Dilemma And Improvement Path Of Judicial Incidental Review Of Administrative Normative Documents

The administrative normative documents judicial incidental review system implies the spirit of the rule of law of power restraint and supervision,reflecting the concept of protection of the right to sue.The Administrative Procedure Law,amended in 2014,has for the first time established the system of judicial review of administrative normative documents.The Interpretation on the Administrative Procedure Law promulgated in 2018 provides detailed provisions on the specific operation of the system in terms of examination standards,follow-up treatment,supervision mechanism and other aspects,providing a standardized basis for the practice of court examination.Although the content of the Interpretation of the Administrative Procedure Law has made significant progress compared with the previous principal provisions,the system still faces many difficulties in concrete operation.This paper selects relevant cases since the implementation of the Interpretation of Administrative Procedure Law as research materials.Taking the judgment elements and review standards of incidental judicial review of normative documents by courts as clues,this paper analyzes the problems of judicial incidental review system of administrative normative documents based on sorting out the current system operation situation.According to the different stages of the system’s operation,in the procedural initiation stage,there is the problem of limited review initiation,focusing on the courts’ difficulties in accurately identifying and identifying normative documents and the overly stringent standards of relevance adopted by the courts.In the substantive review stage,there is the problem of imperfect review standards,which is reflected in the fact that the review of legality has not yet been regulated and the review of reasonableness is less applied.In the follow-up stage,there is a lack of rigidity in the review and processing results,which is reflected in the limited supervisory role of the judicial recommendation system.The "not applicable" effect is limited to individual cases.Based on the review of judicial practice problems,the improvement path of the judicial collateral review system of administrative normative documents is explored in three dimensions: the procedural initiation stage,the substantive review stage,and the follow-up processing stage.In the procedural initiation stage,the channels for judicial collateral review of normative documents are opened by establishing a scientific and accurate identification mechanism of normative documents and relaxing the criteria of relevance to lower the review threshold.At the stage of substantive review,the standard of substantive review is improved by unifying and refining the standard of legality review and clarifying the standard of reasonableness review.In the follow-up stage,the application of the review results of administrative and regulatory documents is strengthened by strengthening the implementation and enforcement of judicial recommendations,building an information-sharing platform for incidental judicial review of regulatory documents,and improving the coordination with the filing review system.