Judicial Review Of Regulatory Document Formulation Procedures

On the basis of various problems and disputes in the actual operation of the system of incidental review of administrative normative documents established in Article 53 of the Administrative Procedure Law of the People's Republic of China(2014 Amendment),Article 148 of the Interpretation of the Supreme People's Court on the Application of the Administrative Procedure Law of the People's Republic of China in 2018 gives a clear response to the question that whether normative document formulation procedures shall be included in the scope of the review,which has long been disputed in the practice of the system,but the specific rules for judicial review of normative document formulation procedures still need to be further refined.Judicial practice has shown that,due to the fuzziness of specific rules for judicial review of the normative document formulation procedures,long-standing problems of uncertainties of the scope and the review standards of the judicial review of the illegality of the procedures in the implementation of the old law are still to be continued in the judicial review of the illegality of the administrative procedures in the practice of law.Based on the basis of the normative document formulation procedures,and current provisions of judicial review system of normative documents in China,combined with principle of administrative law,empirical analysis of judicial review and extraterritorial experience,this thesis discusses the judicial review of the administrative normative document formulation procedures,with a view to refining the rules for judicial review of normative document formulation procedures.This thesis comprises three chapters.Chapter One mainly discusses the necessity of judicial review of normative document formulation procedures.Firstly,this chapter combs the normative basis of the normative document formulation procedures from central and local levels,summarizes the "disorderly " status quo of legal basis of the normative document formulation procedures in China,which is weak and messy,and clarifies the basis of judicial review of the current normative document formulation procedures in China by combing the relevant provisions and interpretations of the existing administrative procedure law.Secondly,a sample analysis is carried out by means of sample investigation of judicial cases to realize the inspection of the effectiveness of the system of incidental review of normative documents,thereby examining the practical difficulties and causes of this system.The extension of normative documents is not unified,the standard of the procedure itself is disordered,and the judicial review system of the current normative documents is not perfect.Allthese constitute the practical problems that the judicial organs are faced with in the practice of administrative trial,such as the unclear trial rules,the difficulty in accurately grasping the boundary of judicial intervention in administration and so on.In Chapter Two,based on the analysis of the theory of administrative law and judicial practice,the scope of the judicial review of normative document formulation procedures is formulated.First of all,through the analysis of the relevant provisions of the current administrative procedure law and its interpretation and the inherent value of the principle of legality review,this chapter demonstrates the core position of the principle of legality in the judicial review of the normative document formulation procedures.What's more,based on the combing and understanding of the relevant provisions of the current law,the induction and analysis of the disputes and views on the relationship between legality and rationality in the field of administrative law and judicial practice,it is believed that,on the premise of adhering to the principle of legality review,it is more reasonable to incorporate the principle of rationality into the connotation of legality review by expanding the interpretation of the connotation of the principle of legality.Moreover,on the basis of the dispute between the field of the administrative law and the administrative trial practice on the review of rationality of the procedure discretion,guided by the illegal phenomenon of the normative documents in the practice of the formulation and development,the discretion attribute of the administrative organ in the process of the formulation and development,and the requirements of restricting the arbitrary power,a progressive analysis of the value of the rationality review of the procedure discretion is made,so as to demonstrate the necessity of the review of rationality of the procedure discretion.Finally,in view of the summary of the legal basis of the current normative document formulation procedures and the requirements of due process principles,through the impact of each link of the formulation procedures on the substantive content and results of the normative documents and an analysis of its own legitimacy value,it is concluded that in general,research and demonstration,drafting,public consultation,legality review,collective deliberation,and public release shall be carried out the core link of the formulation procedures.In determining the scope of judicial review,at least the above core links with dual procedural value shall be included in the scope of review.Chapter Three mainly discusses the to-be-resolved standard of judicial review of normative document formulation procedures in administrative trial.The judicial review of the illegality of the law in the normative document formulation proceduresshall always focus on the degree of procedural illegality.The degree of procedural illegality is a direct embodiment of the damage degree of administrative procedure value.Based on the definition of the connotation of legality and rationality and the demonstration of the necessity of the review of rationality of the procedure discretion in Chapter Two,the standard of judicial review in the normative document formulation procedures shall be the reviews of legality and rationality.Firstly,guided by the degree of procedural illegality,the legality standard and rationality standard are determined respectively.In terms of the determination of the legality standard,in the case where a normative document formulation procedure is clearly provided for by the superior law,it shall be determined by the statutory standard of procedural illegality;in the case where laws and regulations are not clearly defined,it shall be determined by taking the principle of due process as the supplementary standard of procedural illegality;and through the accurate definition of item 4,paragraph 2,article 148 of the judicial interpretation of the administrative procedure law,the standards of current laws for the determination of illegal procedures are determined.Secondly,as far as the rationality standard is concerned,in the light of the important value that can effectively restrict the administrative discretion and that is shown by the principle of proportionality in the field of administrative law,the extraterritorial legal provisions,the legislative practice of our country and the practice of judicial trial,it is necessary to put forward and demonstrate the principle of proportionality as an important way to determine the rationality of procedural discretion.Moreover,through the definition of the basic meaning of the principle of proportionality,the specific standards,applicable to the determination of the rationality of procedural discretion in the normative document formulation procedures in China,are presented.Thirdly,according to the severity of the violation of the principle of proportionality in the normative document formulation procedures,it is proposed to divide the unreasonable situations of procedural discretion into "general unreasonableness" and "serious unreasonableness ",and to define the two accurately.Last but not the least,this chapter explains the limitation of the current Administrative Procedure Law and the relevant judicial interpretation on the judicial treatment of the result of the review of normative documents,and puts forward the idea of the judicial method on dealing with the illegality of procedures,that is,the standardization of judicial treatment proposal,the establishment of an internal information sharing platform and the gradual introduction of confirmation judgment.