The System Of Examining Administrative Normative Documents Together Research On Review Criteria

The system of examining administrative normative documents together is the system of examining the legitimacy of administrative normative documents according to the plaintiff’s application in administrative litigation procedure,which is an inevitable requirement for strengthening the supervision and management of administrative normative documents and maintaining the unity of the legal system.Article 96 of the Legislative Law and paragraph 2 of Article 148 of the Interpretation of the Administrative Procedure Law establish in principle that the court should examine the legality of administrative normative documents together from three aspects: the main body,the procedure and the content.May 2004 Circular of the Supreme People’s Court on Printing and Distributing the Summary of the Symposium on the Application of Legal Norms in the Trial of Administrative Cases(Hereinafter referred to as the summary of the symposium)The theoretical standard of the examination is "lawful,effective,reasonable and appropriate".In the examination of the establishment of the subject,the court should examine the legal elements of the establishment of the subject’s identity and the legal elements of the establishment of the subject’s authority.The establishment of the subject’s identity must be authorized by the administrative organs and laws and regulations,and the establishment of the authority must be within the scope of the statutory authority;In the review of the development process,According to the Regulations on Procedures for Formulating Regulations and the Notice of the General Office of the State Council on Strengthening the Formulation and Supervision of Administrative Normative Documents(No.37 of the State Office)(Hereinafter referred to as State Office No.37)and Guiding Opinions on the Comprehensive Implementation of the Legality Verification Mechanism of Administrative Normative Documents(State Office No.115)(hereinafter referred to as State Office No.115)The relevant provisions of the court to hear,examine,record,approve the publication of the core key procedures for review;In the examination of the formulation content,we should grasp the contradiction between the prohibition rules and the prohibition principles,focus on the contradiction between the normative documents and the upper law,and examine whether the normative documents conform to the general people’s rational,basic concept of fairness and justice on the premise of the legitimacy of the normative documents.With the deepening of the review work,the review criteria in practice,such as the reviewability of administrative normative documents,the principles and intensity of review,have gradually become clear.The court will judge whether the scope of administrative litigation,the main body of formulating administrative normative documents,the externality and relevance of administrative normative documents belong to the scope of joint review.In adhering to the principle of examination,we should correctly grasp the intensity of examination in combination with the types of normative documents and specific cases.In the current judicial practice,the examination of administrative normative documents is not effective,except that the reviewability of administrative normative documents is difficult to grasp,there are still many shortcomings in the examination system itself.Specifically,the external documents issued jointly by administrative and non-administrative subjects,the time limit for the plaintiff to submit the examination,the content of the administrative normative documents to be examined is difficult to determine,the intensity of the examination is difficult to control,the attribution of the burden of proof is not clear,and the execution after the judgment is insufficient.It is necessary to adopt a pragmatic attitude towards joint writing,improve the time limit for requesting simultaneous examination,clarify the litigation status of the framers of administrative normative documents as "the third person",strengthen the pre-procedural legitimacy examination of normative documents,improve the convergence mechanism for examination of normative documents,and establish a database for simultaneous examination of normative documents.To ensure that courts at all levels implement the system of reviewing normative documents together and effectively protect the legal rights of the counterpart.