Research On Judicial Review System Of Administrative Normative Documents

Mr.Luo Haocai believes that “Judicial review is one of the most reliable and effective legal systems for achieving ‘everyone to stand up’ and ‘supervise the government’ according to law through strict judicial procedures.”In China,courts are often anxious during the judicial review process,which is particularly evident in the review of administrative normative documents.As a way of exercising administrative power for administrative organs,administrative normative documents make up for the gaps of the law in the operational level and they are frequently active in the front line of law enforcement,becoming an important way of social governance.The matters involved are allinclusive and closely related to the vital interests of citizens.In practice,various administrative normative documents emerge in endlessly,which break through the legal bottom line,public power robbery and highlight department self-centered and local interests.They not only weaken the credibility of the government,infringe on the legitimate rights and interests of citizens,but also cause quite a lot of damage to the unification of the legal system in China.The judicial review of administrative normative documents in China has undergone a transition from absolute non-review to incidental review,which is closely related to the development of democracy and the rule of law in China.With the requirement of "Sticking to comprehensively governing the country by law " put forward in the report of the Nineteenth National Congress of the Communist Party of China,various administrative laws and regulations have been constantly improved,and the concept of administration according to law has been deeply rooted in the hearts of the people.Improving the judicial review system of administrative normative documents has become an important way to accelerate the construction of a socialist country ruled by law.At present,the domestic academic circles have conducted a detailed and comprehensive discussion on the delimitation,type,effectiveness and supervision issue of administrative normative documents.At the same time,the judicial review of administrative normative documents has also been explored in depth,and some basic theories and methods have reached a certain consensus.However,the academic and practical circles are still confused about the ways of review,the limits of review and the recognition of legitimacy and other issues even after the Administrative Procedure law explicitly grants the court the right to incidental review in 2014 and the judicial interpretation of the Administrative Procedure law in 2018 detailedly stipulates the right to incidental review.Therefore,this article takes the improvement of the system as the axis,focusing on research of the closely related aspects such as review criteria,review intensity,review effectiveness,review mode and supporting security system based on the perspective of empirical analysis,in order to further improve the judicial review system of administrative normative documents in line with China’s national conditions and judicial practice.The article consists of five chapters.Chapter I is about "the emergence and development of judicial review of administrative normative documents”.The emergence and development of judicial review of administrative normative documents in China not only follow the general law of the emergence and development of judicial review,but also are deeply influenced by the traditional power structure of our country and restricted by the unique social history conditions,thus developing into a basic pattern with unique Chinese characteristics.This chapter is divided into five parts.The first part clarifies the definition and connotation of administrative normative documents;in the second part,the supervision system of administrative normative documents in China is briefly reviewed from three aspects: legislative supervision,administrative supervision and judicial supervision;in the third part,the three theoretical principles of rights division balance,responsible government and legal priority are selected as the theoretical basis for the judicial review of administrative normative documents;The fourth part reveals the profound influence of the power structure on judicial review of our country based on the view of China’s power structure by analyzing the historical factors affecting power structure,and then makes a brief historical review of the emergence and development of the judicial review;The fifth part reveals thought about how to play a better role in the field of civil litigation from four perspectives:the inevitability of reviewing administrative normative documents in civil litigation,the way of administrative normative documents entering civil litigation from the perspective of trial practice,review situation of administrative normative documents in civil litigation,review logic and review methods.Chapter II is entitled "the summary of the judicial review system of administrative normative documents ".Whether it is influenced by the external traditional power structure or the imperfect construction of the system norms itself,the undeniable reality is that the judicial review power of administrative normative documents in administrative litigation in China is not working well.Therefore,it is necessary to survey and reflect on the current system and operational status to further improve the judicial review system of administrative normative documents in line with China’s national conditions and that meet the needs of judicial practice.This chapter is divided into four parts.The first part separates and analyzes the elements involved in the review process from the two perspectives of general legal provisions and specific operation practice on the basis of the existing legal system to summarize the judicial review system of administrative normative documents of China to discover the existing problems and shortcomings in the practice of review;In the second parts,the history,current situation and development trends of judicial review of administrative norms in civil law system countries and the common law system countries are briefly introduced,focusing on the four elements of judicial review: review subject,review scope,review standards and review result;the third part,taking the operation of the judicial review review of the existing administrative normative documents as a review,analyses and reflects the operation status and disputes of the system in the starting segment and review segment from the perspective of procedures;The fourth part,on the basis of combing the current operation situation of the review system,analyses the fundamental causes of the system idling,the weakness of judicial review and the realistic conditions for solving the problems.Chapter III is entitled "Improvement of the supplementary judicial review: From the Perspective of judicial review standards and judicial review intensity".This chapter discusses the topic of judicial review system mainly from the principle of "judicial review intensity and judicial review standards".This chapter is divided into four parts.The first part gives a more in-depth explanation on administrative normative documents and their forms in judicial practice from the dynamic perspective of normative documents emergence to application and establishes the principle of combining fact review with legal review on this basis;The second part puts forward the three stereoscopic judicial review standards: power standard,legality standard and legality extension standard,respectively for the interpretation rules and discretionary rules in the view of the current different understanding and identification of the “legality” between academic circles and judicial practice circles on the basis of the existing theoretical research results of review criteria;In the third part,starting from the analysis of the internal logic of review criteria and review intensity,a "criteria + intensity" combined review model is constructed and it is demonstrated by practical cases with typical significance;the fourth part analyses the effectiveness of judicial review from horizontal and vertical dimensions,and provides a clearer direction for the next chapter about the supporting system design of the judicial review system.Chapter IV focuses on the topic of "Lean in-Exploration of direct judicial review".Compared with the direct review system of administrative normative documents,the incidental review system has its inherent limitations and defects.Does China have the basic conditions for direct review? What issues should be paid more attention to in direct review than in incidental review ? These are the questions to be answered in this chapter.This chapter is divided into three parts.The first part compares and analyses the superiority and inferiority of the incidental review system and the direct review system from four aspects: political system factors,relief effectiveness factors,law stability issues and judicial authority factors;The second part demonstrates that China already has the basic conditions for establishing the direct review system under the current national conditions from the two aspects of the legal environment foundation and judicial capacity foundation based on the conclusion that direct review system having natural advantage;The third part emphasizes the issues that need special attention in the direct review from the six aspects of clear jurisdictional settings,strict restriction of start-up conditions,justiciability review,qualified plaintiff identification,interest measurement in judgment and paying attention to administrative specialization.Chapter V is about "Several Thoughts on the Supporting Systems".The writer tries to make useful exploration and reflection on the improvement of judicial review supporting system of administrative normative documents based on the way and scope of the effectiveness of judicial review.This chapter is divided into three parts.The first part is to improve the existing judicial suggestion system from three aspects: establishing an information sharing platform for the review results and the judicial response system,giving courts the right to record,review and suggest and publicizing judicial suggestions;The second part is about the improvement of the internal accountability mechanism of administrative organs based on the three elements: the nature of responsibility,the principle of accountability and the distribution of responsibility.In addition,this part puts forward the establishment of the accountability mechanism taking the administrative recording system as hub based on the existing accountability mechanism;The third part points out that the most fundamental solution to improve the judicial review system of administrative normative documents is to completely eliminate the shortcomings of the administrative operation of judicial power through judicial reform,taking the professionalization of judges as a way to continuously enhance the credibility and authority of the judiciary.