Research On Judicial Application Of Protection Norm Theory

The protection norm theory was clearly applied for the first time in Chinese judicial trial practice and appeared in the retrial ruling of "Liu Guangming v.Zhangjiagang Municipal People’s Government Administrative Review" in 2017.Since then,the protection norm theory has often appeared in the judicial rulings of the Supreme People’s Court and local courts.As a tool to find subjective public rights,it has become a new standard for the qualification of the third party plaintiff in administrative proceedings.Through the interpretation of the Supreme People’s Court’s clear application of the protection norm theory,it can be seen that the court’s adjudicative logic is to replace the interests of subjective public rights,by virtue of protection norm theory to distinguish between subjective public rights and reflective interests,and to judge that the existence of subjective public rights by legal interpretation.The court’s ruling position is to make a clear distinction between civil lawsuits and administrative lawsuits,administrative public interest lawsuits and subjective lawsuits with the application of the protection norm theory,and more importantly,to solve the problem of abuse of litigation rights in administrative lawsuits since the implementation of the case registration system,to achieve the goal of balancing the protection of the right to sue and preventing the abuse of the right to sue.However,the process of judicial application of protection norm theory also deserves many reflections.It is manifested in the inadequate understanding and application error of judiciary on protection norm theory and related concepts,and the neglect of protection of basic rights.Judgment standards applicable to the protection norm theory in different cases are also not consistent.In terms of application effect,the scope of plaintiff qualifications has shrunk,which is contrary to the trend of expanding plaintiff qualifications in recent years.Based on this,in order to apply the protection norm theory correctly and properly,we should recognize the "radioactive" role of basic rights in the determination of subjective public rights,and to detect and identify subjective public rights through the protection norm theory.Basic rights are important supplementary loopholes in interpretation for our country’s judicial practice applies protection norms.If the theory is to perform its proper function and achieve its desired effects,basic rights are key factors that cannot be bypassed.Therefore,basic rights should be incorporated into consider.Judicial trial practice also needs more targeted and feasible suggestions on how to use basic rights.The judge should combine the spirit and value of the basic rights of the constitution in the reasoning part of the ruling reasonably,and for the selection and application of legal interpretation methods,adding constitutional considerations in the process of interpreting and reasoning in order to give play to the normative effects of basic rights.At the same time,setting conditions for starting basic rights to prevent the abuse of basic rights and then avoid the abuse of the right to sue in administrative litigation.In addition,attention should be paid to the development and enrichment of the law by jurisprudence,consolidate judicial experience through the continuous accumulation of jurisprudence,and make the confirmation and creation of rights through guiding cases gradually.In this way,it will form a useful driving force for the shaping and growth of the protection norm theory,and it will be more conducive to providing timely and effective relief to rights and interests that are worthy of legal protection and need legal protection.