A Study Of Administrative Normative Documents In Conflict With The Epistatic Method

The principle of non-conflict in local legislation is an important basic principle that the main body of local legislation must adhere to in the process of making local laws and regulations.This principle plays an important role in maintaining the unity of the socialist legal system,and at the same time,it also delimits the boundaries for the implementation of the legislative activities of the local legislative body,so that the local legislation has a seat in the current legal rank,and at the same time,it does not challenge the power of the superior law.However,in view of the specific connotation of the "principle of non conflict" followed by local legislation and the few and more general provisions on the specific operation of judging "conflict" in China’s relevant laws and regulations,there are different understandings and understandings of "conflict" in both academic and practical circles,which makes it difficult to form a consensus.For example,some views hold that the determination of "conflict" should be judged on the basis of the explicit provisions of the above-mentioned law and the specific authorization.But there are also some views that,in addition to referring to the specific provisions of the upper law,the legislative purpose,legislative spirit and basic principles of the upper law are also worthy of being used as weighing factors in the evaluation of "conflict".It can be seen that if the construction of "conflict" standard and the connotation of "non-conflict principle" want to realize the accuracy of expression and the standardization of application,the road is still a long way to go.Starting from the "conflict" problem in the incidental review of administrative normative documents,this paper will analyze the legal connotation of "conflict",sort out the current situation and causes of "conflict" in the incidental review of administration,summarize the practical problems faced by judges when identifying "conflict" and gradually carry out detailed research on the improvement and construction of the research system of "conflict" in the future,Each chapter corresponds to a research topic.With the help of the "typical cases of incidental review of administrative normative documents" published by the Supreme People’s court in 2018,and in combination with the existing domestic and foreign and judicial practice research results and judicial practice experience on the superior law of "conflict" of administrative normative documents,this paper re analyzes and understands the positioning of the word "conflict" in the entire system of incidental review of administrative normative documents.Starting from the three aspects of local interests,legislative technology and legislative attitude,this paper explores the reasons why administrative normative documents "conflict" with the upper law in judicial practice.After clarifying the current situation andcauses of the "conflict" in the current judgment,we will connect it with the current trial system and the psychological difficulties faced by the judges,and analyze the two major problems to be solved in the current judgment.First,the basis for the judge to determine the "conflict" is too little,and there is no systematic and stable methodology to provide necessary guidance for the judges;second,due to the existence of the current judicial trial system Certain limitations,and administrative normative documents often involve multiple interests,both parties also have the possibility to retaliate against the judge due to the great difference between the determination result and their own expectations,which makes the judge often use the compromise determination basis to avoid the determination risk in the determination process for reasons such as self-protection,neither completely and fairly solve the case nor "conflict" Research provides high-quality judicial case materials.For this reason,the fourth part will be based on solving the above mentioned shortcomings and give targeted suggestions,such as building a typical case reference mechanism and administrative trial fault tolerance system,clearing the obstacles faced by judicial practice,in order to make a modest contribution to the early formation of specific "conflict" standards.