Construction Of Normative Document Review System Under The Framework Of Administrative Procedure Law

After the revision of the Administrative Procedure Law in 2014,the judicial review of administrative normative documents has gradually attracted more scholars’ attention.At the same time,the judicial review practice of administrative normative documents has revealed many problems.The existing research on judicial review of normative documents has covered many important issues,including the qualitative issue of administrative normative documents,the way and depth of review,the boundaries of judicial power,the standards of review and so on.However,the current theoretical research generally neglects an important issue in the construction of judicial review of administrative normative documents: there are actually two kinds of interlaced review power in the current construction of judicial review of normative documents.After the establishment of administrative litigation system in China,the judicial review system of normative documents gradually established in judicial practice(hereinafter referred to as "normative review" system)is actually a normative document review system derived from the judge’s right to apply the law.The 14-year Administrative Procedure Law has legislated to confirm the power of the court to examine the legitimacy of normative documents.This right of legitimacy review is still unable to depart from the framework of the right of choice of law.However,driven by the judicial interpretation and policy of the Supreme People’s Court,the "right to review the legitimacy" of normative documents has shown a tendency to gradually break away from the "right to choose the application of law".However,the legitimacy review of administrative norms is still formally "locked" in the context of the application of legal choice.Compared with the structure of foreign norms review,the norm review in China is not a "complete" system of administrative norms review.It can be concluded that the power of normative review in China’s administrative procedural law includes two parts: one is the court’s "right of legitimacy review" to determine the legitimacy of normative documents,and the other is the court’s "right of law choice and application" to determine whether normative documents can be used as the basis for review.Previous studies have not paid enough attention to this phenomenon.This paper argues that the core issue in the current "Administrative Procedure Law" normative review structure is a series of practical problems arising from the intersection of the "legitimacy review power" of administrative norms and the judge’s "right to apply the law to choose"(hereinafter referred to as "power staggering" for short).Only by taking this issue as the core and clarifying the distinction and boundary between the "basis review" and "legitimacy review" in the normative review,can we gradually sort out the complex review structure clearly,so as to construct the review methods and methods that conform to the normative review structure of our country,and also clear the way for the further development of the judicial review power of normative documents.Based on the basic standpoint of legal hermeneutics,this paper adopts the demonstration idea of "description of statutory law-problem precipitation-problem analysis-suggestion".It describes the statutory status of normative review in China by comprehensively explaining legal provisions and Empirical Study of typical cases in judicial practice.On the basis of comparing foreign laws,it analyses the problems in the construction of normative review in China and applies them.The knowledge of normative theory,legal methodology and legal argumentation in theoretical jurisprudence analyses the problems in the construction of normative review,and finally puts forward suggestions on the method of review based on the construction of normative review.This article is divided into five chapters: Chapter 1 summarizes and analyses the administrative procedural law,relevant judicial interpretations and judicial policies,describes the problems encountered in the current judicial practice of normative review,and on this basis,analyses the core problems in the structure of the review of administrative norms in China: the interaction between the "right to review the legitimacy" of administrative norms and the "right to apply the law" of judges.Problem.Chapter two divides the two kinds of reviews existing in the construction of normative review in China,and points out the essential and formal differences between "basis review" and "legitimacy review" based on the right of application of law choice.Chapter three,based on the difference between the two kinds of reviews,tries to clear up the confusion in the way of reviews caused by "power staggering",analyses the logical relationship and order between the two kinds of reviews,points out the inversion of the order of reviews in the construction of normative reviews in China,and puts forward the logical review path under this structure.Chapter IV explores the boundaries of judicial power in normative review based on the characteristics of China’s review structure.In the last chapter,according to the differences,relations,sequence and boundaries between "review on basis" and "review on legality" in the construction of normative review in China,the author puts forward some suggestions on the criteria and methods of review.