Judicial Review In EC Law And The Enlightening Guidance To China

I mainly introduce and analyze the system and the theoretical basis of Judicial Review in EC Law in this thesis, and discuss the enlightening guidance of Judicial Review in EC Law to China.The thesis is composed of three parts, that is, the outline of Judicial Review in EC Law, the theoretical basis of Judicial Review in EC Law and the enlightening guidance to China. I first introduce the Judicial Review in EC Law in this thesis, then I analyze the theoretical basis of Judicial Review in EC Law, lastly, I discuss the enlightening guidance to China on the basis of analysis.I introduce the Judicial Review in EC Law in first part of this thesis. The Judicial Review in EC Law is developed on the basis of the tradition of Continental Law and Common Law. European Court of Justice efficiently prevent the abuse of power through reviewing the legislation of EC, failure to act and Member States' failure to fulfilling an obligation under EC Treaty. European Court of Justice will review the legislation of EC at any time through the indirect judicial review procedure. The case law is very important in the Judicial Review in EC Law. I also give some introduction to the grounds and the founction of Judicial Review in EC Law. I analyze the theoretical basis of the Judicial Review in EC Law in the second part. Any political system needs the support of legal theory. When the Member States create the EC, the theory on the constitutional government were introduced into the EC, and laid the theoretical basis for the Judicial Review in EC Law. In the theory of hierarchy of law created by Hans Kelsen, he consider that law has strict hierarchy, and the higher law is the precondition of the legality of the lower law, and the lower law cannot violate the high law. According to the theory on the relation between the will of parliament and the will of people (public will), the will of parliament isn't equal to the will of people, so the legislation of parliament only reflects the will of itself. Therefore. When court declares the illegality of legislation, it only denies the will of parliament and doesn't deny the will of people. According to the theory of separation and restraint of power, in order to prevent the abuse of power, the power shall be separated and restrained. For this purpose, the judicial review is the best way to do so. The theory of superiority of judicial power interprets why judge can construct law and create case law. Under the influence of above-mentioned theories, the strict hierarchy of EC law is established, and the system of judicial review is created to restrain the legislative and administrative, and also the legal basis is made for the European Court of Justice to construct the EC law and create case law.In the last part, I discuss the enlightening guidance of Judicial Review in EC Law to China. The theories on judicial review in west countries established the legal basis for the Judicial Review in EC Law. However, our country is short of the influence of these theories in the tradition, and this the reason why the system of judicial review in China has some weakness. Therefore, the theories and the system of Judicial Review in EC Law has very important for the improvement of our judicial review system. In order to improve our judicial review system, we shall renew our theory, and start to review the abstract administrative behavior, and create the case law in accordance with our situation to remedy the defect of legislation.Lastly, I summary the whole thesis.