The Dilemma And Way Out Of Judicial Application Of Administrative Convention

In decades of judicial practice,judges have been using statue law as the basis of judgment.However,the judicial suitable rate of administrative convention has been rising in recent years.By screening and analyzing the judicial documents,the author finds that administrative convention has a place in judicial practice and becomes more and more intense.Although there are some problems in the judicial application of administrative convention,the Supreme People's Court tries to set a tone of "applicable" by issuing typical cases.It is an indisputable fact that judicial authorities apply administrative convention in the absence of relevant legislation.Administrative jurisprudence has begun to respond to this phenomenon.After several changes in the theory of the source of law of administrative law in China,administrative convention are finally incorporated into the source of unwritten law.The modern theory of source of law holds that administrative convention,as an unwritten law,should rank lower than the statute law.Combined with Legislation Law,Administrative Procedure Law and its judicial interpretation,administrative convention should have a higher level of effectiveness.However,in the sense of legal provisions,its rank should be lower than that of guide case.Through the analysis of the mainstream viewpoints and the definition of rank,it is found that administrative convention has the legal basis of judicial application.As the source of unwritten law,administrative convention has many values,such as making up for the shortcomings of statue law and improving administrative efficiency,so the role of administrative convention in judicial practice should be re-examined.However,the judicial application of administrative convention encounters double dilemmas in theory and practice,including confusion in form,unclear effectiveness,uncertain litigation status,and lack of relevant supporting system of judicial review standard.These chaotic situations hinder the judicial application of administrative convention.Therefore,based on the practical needs of judicial application,this paper tries to solve the dilemma of administrative convention in judicial application,and finally puts forward five suggestions.This paper is divided into the following four sections:The first section is about administrative convention in judicial cases.This section makes a detailed analysis of five typical cases concerning disputes over administrative convention,illustrates the fact that the application of administrative convention hasformed in judicial practice,and deeply considers the problems existing in the practice of administrative convention.The second section is about the legal status and rank of administrative convention.This section begins from the main point of the theory of administrative sources of law,demonstrates that the status of the sources of law of administrative convention has theoretical basis,and demonstrates the level of effectiveness of administrative convention in detail.The third section is about the dilemma of the application of administrative convention and the analysis of its causes.Combining with the first and second sections,this paper sums up the problems of judicial application of administrative convention in theory and practice,and analyzes causes.The fourth section is about the way out of the predicament of judicial application of administrative convention.The author aims at the problem of the third section,such as the rank and effectiveness,judicial review,application methods,supporting systems and other aspects of judicial application of administrative convention,to find solutions to the dilemma.