On The Research Of The Incidental Review Of The Administrative Normative Documents In China

The judicial review of the normative documents is a systematic innovation after the revision of the Administrative Procedure Law of China,which has broken the tradition that the administrative litigation system of our country only used to be carried out during the examination of the legitimacy aimed at the specific administrative behavior,and the normative documents,belonging to an abstract administrative act,are regarded as a target of the examination of the law.The newly revised Administrative Procedure Law taking the charge of supervising administrations by law,which is also making the incidental review system attract more attentions under the guidance of the legislative purpose.Considering the problems that have really happened in the judicial practice of China,this paper focuses on the problems existing in the system of incidental examination in our country.Through the introduction of the typical model in the United States with similar issues: the Chevron Deference,and the constant development in lots of trial further,the incidental review is optimized and improved,which may promote the administration according to law and enhance the credibility of our administrations effectively.This article is divided into four parts: The first part briefly summarizes the incidental review system of normative documents in China.From the view of the new revision of the Administrative Procedure Law,the provisions of the system are still not perfect;many concepts in the academic and practical fields do not form a consensus.Therefore,this paper gives a clear picture of the related concepts and the existing problems firstly,which will make the following contents more convincible.The second part is a brief overview of the Chevron Deference,providing judicial framework for judicial review of administrative discretion in the US.Considering that the United States is a case law country,the case is the basis for the trial in the court,and regarded as the basic principle of this article naturally.In present,the academic fields in our country haven’t paid enough attention to it.Therefore,this article prohibits the case,development and the evolution in this charter,which will be a good foundation for the further discussion.The third part presents the Step Zero Trilogy,which is developed and approved by the American academic circles after the original Chevron Deference.It is generally accepted as Chevron Deference.With the continuously deep understanding about the research of the American Administrative Law circle and the repeated practice experiences,this article displayed the concept of A Step Zero Trilogy of Chevron Deference,which is not followed by the domestic academia currently,and will be discussed in detail.The fourth part tries to introduce the basic mode of the Step Zero Trilogy of Chevron to solve the problems existing in the incidental review system of normative documents.Considering the problems existing in the system of incidental review mentioned in the first part of this article,by introducing the Step Zero Trilogy into the actual cases in China,and based on the national conditions of our country,it is proposed that the judicial authority should strengthen the awareness of "judicial review of the normative documents" and "Procedural rules of incidental review system",meanwhile,Self-monitoring mechanism should be established by administration authorities and the administrative counterpart should enhance the awareness of the law gradully”.