An Analysis Of Judicial Practice Of Protecting Norm Theory

Article 25 of 《Administrative Procedure Law》 divides the plaintiff into two categories : the administrative counterpart and the relevant person who has an interest in the administrative act.The discussion on the interest relationship has not stopped in the academic and practical circles.The key lies in the lack of a unified standard of determination in the current judicial practice of our country.In the case of ’ Liu Guangming ’,the Supreme People ’ s Court introduced the theory of protection norms and the related concepts of subjective public rights into the administrative entity trial :that only when the rights and interests requested by the prosecutor fall into the protection scope of the administrative substantive law norms on which the administrative organs make administrative acts,the plaintiff qualification of the prosecutor can be recognized.However,like the discussion of ’ interest relationship ’,the introduction of the theory of protection norms in judicial practice has also brought about fierce discussions in theoretical and judicial practice.It is undeniable that the introduction of the protection norm theory in judicial practice provides a relatively objective basis for the identification of the plaintiff qualification in administrative litigation in China.However,we must also recognize that the introduction of this theory is the result of the promotion of some judges in the Supreme People ’ s Court,and there is no unified identification standard and application path in China.At the same time,in the trial practice,there are also different ways : some courts choose to apply the theory,some courts still follow the original local theory as the referee plaintiff qualification benchmark,some lower courts did not choose to apply the theory but the higher courts apply the theory.As for the reasons for the above three situations,it may be that the judge ’ s cognition of the theory of protection norms stays in a simple conceptual reference stage,it may be due to the different legal interpretation abilities of judges,or it may be due to the fact that the theory of protection norms is inconsistent with the situation of water and soil as an external theory.Therefore,it is particularly necessary to discuss how to use the theory of protection norms in China ’ s administrative litigation to determine whether the plaintiff is qualified.Carefully Carding the Evolution of Plaintiff Qualification Standards in Administrative Litigation in China,from which we can clearly understand that China ’ s administrative litigation plaintiff qualification presents the trend of gradual expansion,and this is the purpose of the revision of the administrative procedure law.However,the identification of the standard of interest is a very complex and difficult process.This is precisely the difficulty in determining the qualifications of plaintiffs in administrative litigation.The introduction of the theory of protection norms from Germany,that is,to determine the existence of interest relations by judging whether the prosecutor has subjective public rights,is conducive to the solution of this practical dilemma.By combing the development history of German public rights theory,that is,from Jelinek ’s public rights theory to Buller ’ s three elements of public rights theory,to Bakhov ’ s revision theory and to the final establishment of Asman ’ s new protection norms theory,this paper introduces the development history of the theory of protection norms,and provides theoretical support for the Supreme People ’ s Court in the Liu Guangming case.Based on the different national conditions in China,the introduction of this theory has also caused great controversy.By sorting out the relevant judgment documents of people ’s courts at all levels in China,it is found that the application of this theory is not as satisfactory as expected.At the same time,according to the application of this theory in China ’s judicial practice,it can be found that the Supreme People ’s Court has not always been consistent with this theory,and there are also mechanical applications and confusion in the application of local courts.This paper attempts to start with the reasoning part of the Supreme People ’s Court in the judgment documents,from the case that implies the application of the theory to identify the plaintiff ’ s qualification to the case that clearly applies the protection norms theory to identify the plaintiff ’ s qualification and then to the case that does not adhere to the application to view the protection norms theory in China ’ s judicial practice.In the case judgment of the local court,the judicial practice of the protection norm theory in China is examined in cases with different understandings of the application of the protection norm theory.The reasons for the above problems in the application of the protection norm theory in China ’ s judicial practice are analyzed.To explore the reasons for different treatment attitudes of cases presented by the theory of protection norms : it may be the problem of the theory of protection norms itself;It may be incompatible with our current judicial system;There may be a lack of specific steps to apply the theory of protection norms;Maybe for the theory of our judges or inadequate understanding of the problem and so on.The introduction of the theory of protection norms in judicial practice in China should be cautious.The theory of protection norms breaks through the limitation of the interest relationship specified in the law in identifying the qualification of the plaintiff,expands the scope of the qualification of the plaintiff,and meets the legislative purpose of the administrative procedure law.However,it is necessary to pay special attention to avoid its negative effect in the application of the theory of protection norms.In order not to affect the continued application of the theory of protection norms in China ’ s judicial trial,the specific path of the judicial application of the theory of protection norms should be combed,so as to avoid the judge staying at the formal level of the introduction of the concep.It is particularly necessary to explore this specific path.