Legal Regulation Of Administrative Standard Documents In China

Nowadays, the social living had been affected greatly by the administrative normative documents published by administrative organs. These documents can make up the abstract and hysteretic nature of law. Together with the overspread of the national administrative power, these documents became more and more vital. However, there are a lot of conflicts between the administrative normative documents published by administrative organs. The legality review of such documents is also confused. Therefore, these documents may act as The Sword of Damocles. Without effective control, these documents would greatly affect the nation operation. They may even infringe civil rights. In this thesis, the confliction of administrative normative documents and their legality review were studied from the aspect of the relationship between administrative normative documents and law.The first part of this thesis gives a brief introduction about the current research status of administrative normative documents in our country. These documents are usually defined by the institutions which made them. However, this definition has some disadvantages, such as it can not resolve the conflicting status between these documents. This definition can't benefit the legal review of administrative normative documents either. Therefore, this thesis proposes the following viewpoint from the aspect of the relationship between administrative normative documents and nation law. We first considered whether the administrative regulations, rules and normative documents are controlled or authorized directly by law and Constitution. Based on this, we proposed our own definition. In generalized, our definition is in accord with the general point of view, that is, the administrative normative document in our nation should be defined as all the promissory administrative normative documents published by administrative organs, including administrative regulations and administrative rules. But in narrow scope, we believe that the administrative normative document should be defined as the promissory administrative normative documents published by the administrative subject within their authority range, except for the administrative regulation. These documents have two sub-definitions, that is, administrative rule and administrative norm.At the beginning of the second part, we introduced the classification of administrative normative document in our nation, which has some inherent shortcomings. Then, we referenced the classification in France, and proposed a new classification method. Our classification method is on the basis of public service theory. We classified these documents as internal administrative rules and external administrative normative document. The later can also be classified as operational administrative normative document, autonomy administrative normative document and legal administrative normative document, based on the relationship between these documents and nation law. The operational administrative normative document is used to nail down how to execute the law or regulation, or make complementarity to the prescript of law or regulation. The autonomy administrative normative document, on the other hand, is defined as the documents published by the administrative subject under their authority which is used for fulfilling the administrative service function. Finally, the administrative normative document which is established under the special authorization of Constitution or legislature is named as the legal administrative normative document.In the third aspect of this thesis, we discussed the confliction actuality of administrative normative document. The confliction status in quo in our country was introduced and assessed at first, than we proposed our point of view that the intrinsic of the confliction is ascribed to the abstract and hysteretic nature of law. Law is abstract, so every administrative subject has its own explanation, which wouldn't be consistent in every single case. Law is stable owing to its authority, which would bring the hysteretic nature of law. Owing to the economic and culture difference between each region, as well as the different level of administrative subjects, the confliction of these administrative normative documents is inevitable. Based on this fact, we arise our solution. Herein, concerning the relationship between administrative normative documents and law, we are trying to resolve the conflicting problem by classification analysis. We presented how to resolve the conflicting of external administrative normative documents and some unique conflict circumstance. The typical solutions of this conflict only give a general mode or standard for resolving this problem. In the final part of chapter 3, we conceived that which subject should play the vital role in resolving this conflict.The final aspect of this thesis represented the legality review of the administrative normative documents. The legality review can not only resolve this conflict problem, but is also necessary for the legalization of our nation. This "legality review" of administrative normative documents is the review of legality and conflicting of administrative normative documents executed by an authorized organ. The subject of legality review for administrative normative documents is a unique organ including legislature, judicial organ and administrative organ. The standard of legality review for administrative normative documents is the "law" they relayed on. This "law" should be defined generalized, which contained not only current codified law or regulation, but also including the Constitution, the fundamental of law or even the principle of the law. This generalized standard of legality review is banded with the current classes of administrative normative documents. Legislature, judicial organ and administrative organ should review specific administrative normative documents separately. This thesis pointed at the situation of legislature as the subject of legality review. We believed that a better way to optimize the judicial practice of administrative litigation is to establish a specialized administrative court for the legality review of administrative normative documents. This administrative court should become the only administrative trial organ, while the routine courts should no longer take part in such administrative litigation cases. As a specialized court, the administrative court should be governed by the supreme people's court directly. This court contained the supreme administrative court, the senior administrative court and secondary administrative court. The details of this concept were discussed in the terms of the competence and organs, the material guarantee and the judge appointing of the administrative court. The constitutional review and administrative precedent system should also be completed after the establishment of the administrative court. Then, the judgment and review of the various terms of administrative normative documents conflict can be optimized. The legality review for administrative normative documents should obey the rules of the Constitution, because it is the root of our national law, as well as the announcement of civil right. On the other hand, the administrative precedent system can save the typical administrative cases as a standard for the judges of subsequent cases. This may contribute to the optimization of legality review and keep away from the jurisdictional arbitrary. We proposed our own concept of the establishment of these two systems. For example, we discussed how to dominate or start the legality review of administrative normative documents, the authorized region of the legality review of administrative normative documents, the creating organ of administrative precedent system, the program of creating the administrative precedent system, the authorization level of the administrative precedent, the termly discussion mechanism of administrative precedent, etc.In conclusion, we believed that with the help of the conflict regulation system and the legality review system, the administrative normative documents would play a better role under the regulation of law.