Research On The Review System Of Regulatory Documents

In 1989,the "Administrative Litigation Law" was formally promulgated.The law did not involve the review of regulatory documents.It only stipulated that the administrative agency should provide the regulatory documents on which the administrative actions were based.It only implied the meaning of collective review.Subsequently,in the "Executive Interpretation" issued in 2000,it is stipulated that the normative documents have only the meaning of "reference".It was not until the 2014 "Administrative Procedure Law" was revised that legislation confirmed that courts have the right to review regulatory documents,and in the 2018 "Applicable Interpretation" the review procedures and review standards for regulatory documents were regulated in more detail.Since the implementation of the unified review of regulatory documents,the number of administrative cases accepted by the courts has steadily increased.However,administrative counterparts rarely file the regulatory documents on which administrative actions are based when prosecuting the lawsuit.Not only that,in a very small number of cases filed for collective review,the courts often adopt a passive review attitude and a mere formal review method,making the collective review of my country’s normative documents not effective in judicial application.In the process of studying judicial cases,it is found that there are five problems in the application of the collective review by the court,which are mainly manifested in:First,the definition of administrative normative documents is vague.If the court is unable to accurately determine that a document is an administrative normative document,how can it apply the collective review system.Moreover,the number of official documents formulated by administrative agencies today is numerous and diverse,and a reasonable and effective way of identifying normative documents is indeed needed.Second,the timing of the start of the review of administrative normative documents is unreasonable and the "justified reason" is not clear.In practice,some plaintiffs did not initiate a collective review before the hearing,but they did so during the trial,but they were mostly rejected by the court on the basis of “unjustified reasons”,and the courts rarely conducted “justified reasons”in the judgment grounds.Arguably,some parties even made a request for review during the second instance,and the court also made a corresponding judgment on this.Third,it is unclear whether the normative document serves as the basis for the administrative act being sued.When an administrative agency makes a specific administrative act,it either relies on one document or multiple documents,or even some normative documents that do not directly quote the basis.The court only interprets it in the context of "basis" when reviewing collectively.To determine the direct basis relationship between the two,leading to some regulatory documents that should be reviewed together to escape judicial supervision.Fourth,the substantive standards of collective review have limitations.Whether it is a formal review or a content review,whether the content review is based on non-compliance,non-violation,or non-obvious violation.These standards have certain limitations when applied,and a new set of substantive examination standards are required.Fifth,the follow-up processing of regulatory documents lacks binding force.The court found that the regulatory document is illegal.If it cannot be processed in time,the document may continue to infringe the rights and interests of other parties.At this time,the court needs to play a strong judicial supervision role.Although the judicial interpretation of the Administrative Litigation Law provides a variety of follow-up processing methods,in reality,the formulation agency has very little feedback.This requires improvement of the existing follow-up processing methods to urge the document formulation agency to correct the normative documents in a timely manner.Therefore,on the basis of analyzing the problems in judicial application,the discussion will be divided into five parts and corresponding suggestions will be put forward.The first part clearly defines the normative documents.Summarize the connotation of normative documents from the existing legal provisions and academic disputes,and then discuss the application status of its extension in judicial practice cases,and finally assist the court in identifying normative documents by establishing a normative document database.The second part is to moderately extend the start-up time of the collective review,and clearly state the judging criteria for justified reasons in the judgment document.To find out the disputes on the start-up time from the existing judgment documents,analyze the different explanations of the legitimate reasons in the judgment documents,and increase the convenience of the court in the review and start-up by extending the start-up time and clarifying the criteria of justification.In the third part,the normative document as the basis of the accused administrative action should be the basis of relevance,content,and the principle of specific clauses as the exception.Different judgment documents have different standards for the determination of the basis relationship,and each court also has its own reasons for the judgment,but the court review should have a set of practical and feasible standards for the determination of the basis.The fourth part is to adhere to the substantive standard of review with the purpose of formulation,the basic legal principles to be adhered to,and the basis of facts.The existing standards of non-contradiction,non-violation and non-obvious violation of the law all have certain limitations,and the problem can be solved only by taking the objective,principle and factual basis as the substantive standard.The fifth part,in the follow-up processing of illegal normative documents,by raising the level of the sending subject to ensure the authority and coerciveness of judicial advice,and give corresponding responsibilities to the negative processing agency.The judicial proposal sent by the court was originally a measure sufficient to ensure the good operation of the collective review system,but when it was applied,the judicial or administrative agency did not act,and it is urgent to strengthen the binding force of the judicial proposal.