Research On The Judicial Additional Review Of Administrative Normative Documents

As the reform of judicial system is continuously propelling in our country,the new revised Administrative Procedure Law 2014 regulates that court can incidentally review the Administrative normative documents in the process of reviewing the legality of Administrative action,for safeguarding Civil rights and supervising administrative organ administration by law.The judicial additional review of normative documents is feasibility and necessity,fits with our country’s system of government and has constitutionality.The legal attributes of judicial additional review is a kind of “Conversational indirect review right”,which is different from the“Regulatory review right” and “Choose to apply right”.It means court can comprehensively review the legitimacy,rationality and effectiveness of normative documents,but cannot abolish the illegal normative documents in the verdict.Compared to the Record review,there are some differences and connections in review nature,scope content and procedure.The scope of judicial additional review is designated,and the condition is that the normative documents must be the basis of Administrative action.For defining the scope,court should distinguish accurately between “the Regulatory documents approved by the State Council”“the normative documents issued by the party and government” “the Administrative regulations”“the Administrative action”“the internal norm” and the normative documents.In terms of submitting condition,the Administrative counterpart should submit review request to the court of Administrative action case.At the same time,there should have interest relationship between the litigants and the normative documents,but cannot deny the submitting right of the Third Party.However,it is not necessary to strictly restrict the submitting time and the normative documents ‘specific terms.It can be seen that the review criteria of reviewing normative documents are relatively comprehensive in the aspect of norms and practice by investigate the Supreme people’s court the National People’s Congress and its Standing Committee,especially the typical case of the Supreme people’s court had issued.But there also are some mixed between different reviews criteria.To construct the system of review criteria of reviewing normative documents,the “Authority” standard comprises the“Qualification” standard and the “Jurisdiction” standard;the “Content” standard comprises the “Conflict” standard 、the “Violation” standard and the “Abuse of authority” standard、the “Obviously inappropriate” standard;the “Produce” standard comprises The “Mandatory” standard and the “Guidance” standard.At the same time,considering the Substantial legitimacy,court also should review the “Legal issues”apart from the traditional “Factual issues”.Reviewing the “Legal issues” of normative documents is the internal requirements of “Proportionality principle”,the basically oriented of reviewing “Legislative discretion” and the reinforcement reasons of“Legality argument”.The review of “Legislative facts” and “Consideration of consequences” are the main aspect of “Legal issues”.As a kind of “indirect review” way,the court cannot undo the illegal normative documents,which causes the normative documents may be reviewed repeatedly.If the Part of litigation between the former and the behind case are same,the judicial additional review of normative documents may also appear repeat review,but which is base on the “Legal efficiency of issue” not the “Res Iudicata”.If the Part of litigation between the former and the behind case are different,the review conclusion of former case has only generated a kind of “Factual proof of validity”,which is not“Institutional validity”.The court cannot use the illegal normative documents as the basis of Administrative action after reviewing.But according to the functionalism,if the normative documents are legal,will form a kind effect of “should apply” to the court.The court can submit “judicial advice”,which includes the legitimacy reasonableness and constitutionality of the normative documents,to the formulating agency and another agency.It should comply with the principle of “necessity” “universality” and“public” when summiting “Judicial advice”.