Research On The Content Of Collateral Examination Of Administrative Normative Documents In Administrative Litigation

The Administrative procedure Law and the 2018 Supreme Courtundefineds interpretation on the Application of the Administrative procedure Law of the peopleundefineds Republic of China stipulate that the court shall examine the contents of the collateral examination of administrative normative documents in two aspects.That is,the review of the elements of the request and the review of legality.In the scope of the subject of the request,the exception to the time of the request,the judgment of the administrative normative document as the "basis" of the administrative act,the understanding of the legal functions and powers of the administrative organ or the authorization,the determination of the conflict with the superior law,and the examination of the formulation procedure,Because the existing text is not clear,the academic circles have carried on the discussion to it.Through the combing of academic views and the empirical investigation of 990 related administrative normative documents,this paper abstracts the trial rules of the peopleundefineds court in judicial cases,and puts forward some suggestions for improvement.In the aspect of the perfection of the examination of the requirements of the request,the third party in administrative litigation other than the administrative organ should be given the right to initiate the supplementary examination.Exceptions to the filing time,including whether the applicant was informed of the existence of the administrative normative document before the hearing reply,and did not know that he or she had the right to file an accompanying review before the hearing reply;For the judgment of "basis",as long as the administrative normative documents have a certain impact on the administrative act,it should be regarded as the existence of the relationship of basis.In the aspect of legality review,the provisions of validity review should be increased.Exceeding the jurisdiction includes the prohibition of matters involving legal reservations and matters expressly excluded by the Superior Law.In the judgment of conflict with the superior law,the methods of norm conflict and principle conflict examination are adopted respectively.The procedure review adopts the key link review and distinguishes the consequences of violating different links.