A Study On The Jurisdiction Of Incidental Review Of Normative Documents

The revised Administrative Procedure Law in 2014 no longer distinguishes between the two concepts of "specific administrative act" and "abstract administrative act",and for the first time puts forward the concept of collateral review system of normative documents.At present,the incidental review system is in the process of gradual improvement.The emergence of this system makes the administrative litigation and administrative reconsideration system in China have a further link.The current Administrative Procedure Law also provides for the system in terms of examination conditions and jurisdictional courts,which is still too macro compared with China’s judicial practice.The specific legal norms concerning the jurisdiction of the supplementary examination of normative documents are still not detailed enough.It needs to be further discussed and perfected by the theoretical and practical circles.According to the relevant provisions of the newly revised Administrative Procedure Law of China in 2017,the first instance jurisdictional courts generally determine the level and area of the corresponding jurisdictional courts according to the administrative organs that make specific administrative acts.In practice,the people,property and property of the court will be constrained by the local government.It is difficult to overcome the interference of the local government.Sometimes,the impartiality and authority of the judiciary will be impaired.The normative documents in practice have their own particularities.Because of their broad formulation subjects,the manifestations of the effectiveness level are also very diverse,and the scope of application is also very flexible and diverse.The review of the normative documents should be based on a comprehensive understanding and analysis so as to guarantee the comprehensiveness and fairness of the trial.Therefore,in the process of drafting the judicial interpretation of the Administrative Procedure Law by the Supreme People’s Court of China in 2018,it is generally believed that if the higher-level courts have jurisdiction,it may be suitable for the examination of normative documents.Two different suggestions have emerged.The first is that the higher-level courts have jurisdiction over the normative documents,and the choice should be made according to the level of effectiveness or geographical differences of the subjects who make the normative documents.To minimize improper interference from local administrative power and maintain the fairness of judicial trials.The second point of view is to suggest a differentiated approach to the jurisdiction of normative documents.It is suggested that cases should be classified from a more comprehensive perspective.There are several different schemes,which are: unified treatment by grass-roots courts,treatment by higher-level courts,and handing over the right of choice to the organs that make normative documents.The last view is chosen by the relative person himself.Therefore,the judicial interpretation of the Supreme People’s Court does have many different opinions on how to determine the jurisdiction of the normative documents in the specific drafting process.But ultimately it is only a principled provision,that is,the courts that make administrative acts will be the jurisdiction,and the general and special jurisdiction involved in it will not be covered by the exceptions in this and incidental jurisdiction.Therefore,whether from a practical or theoretical point of view,the current legal provisions and judicial interpretation of the complex situation in the case,how to carry out the specific application of the law,it is worth exploring and further improving.The characteristics of normative documents determine the multi-level nature of their subjects.In practice,there are inconsistencies between the main body of making normative documents and the main body of making administrative acts,and there will naturally be exceptions to the regional or level inconsistencies of the jurisdictional courts of normative documents.According to the relevant provisions of the current Administrative Procedure Law on the collateral review system,in administrative litigation cases,the level and geographical scope of the first instance jurisdiction court are decided by the specific administrative department,and the normative documents on which it is based are directly heard together.However,if we rigidly apply the current Administrative Procedure Law and its latest judicial interpretation,and do not carry out theoretical and empirical research on differentiation,we will not be able to effectively play the role of the supplementary examination system of normative documents in guaranteeing the legitimate rights and supervision of the counterpart in practice.The role of the exercise of power.Therefore,in theory,we can think: in the face of the inconsistency between the administrative act of the appeal and the validity level of the regional or normative documents in practice,in the framework of the current legal system,the determination of jurisdiction only on the basis of general jurisdiction clauses,whether it can really implement the system function of the Political Procedure Law and the latest judicial interpretation of the Administrative Procedure Law in 2018 is relevant.The purpose of legislative amendment? Should we further adjust and refine the existing legal norms on the jurisdiction of incidental judicial review of normative documents? What conditions need to be met,through which subjects,what procedures and what monitoring mechanisms to determine and adjust?Firstly,the paper introduces the background and significance of the topic,research path,research methods,research status and related innovations.Then,based on the purpose of administrative litigation and the theory of right remedy,this paper studies the legislative background and existing theoretical disputes of the jurisdiction of judicial review attached to normative documents,and on this basis,analyses the necessity of the jurisdictional adjustment of judicial review attached to normative documents from the theoretical and practical levels.Next,the paper mainly summarizes the different types of normative documents in practice,the effectiveness of administrative actors and regions.Based on the legislative purposes of rights protection and administrative procedural law,it explores how to further regulate,adjust and refine the determination of the jurisdictional court within the current institutional framework.It also analyses the normative articles from both theoretical and practical perspectives.At present,there are different situations in jurisdiction.The subject of exercising jurisdiction and the subject of adjusting jurisdiction are clearly defined.Finally,some suggestions are put forward to improve the existing problems in practice,including clarifying the subject of jurisdictional adjustment,determining the specific conditions and procedures for starting jurisdictional adjustment,and setting up the system of dealing with the objection and review of the results.Through the discussion of the above problems,I hope to provide some help for the effective implementation of the system of incidental review of normative documents in the future,to protect the legitimate litigation rights of the counterpart,to give full play to the functions of the system,and to realize the fundamental legislative purpose of right relief.