On The Perfection Of The Elements Of Examination And Initiation Attached To Administrative Normative Documents

It has been five years since the revision of the Administrative Litigation Law in 2017 confirmed the accompanying review system for administrative normative documents.Historically,judicial review of normative documents is not an innovative move,but is actually implicit in the operation of administrative litigation.The legislative confirmation with the censorship system has been widely praised by the academic circles.It is believed that this system will greatly improve the long-standing situation of normative documents and is the only way to build a government ruled by law.However,judicial practice in recent years has not developed as expected,resulting in the dilemma of poor system operation and weak supervision of normative documents.By searching for cases in the past three years and conducting reading research,this paper finds that requests for incidental review of a large number of normative documents have not been responded by the court,and the legality review procedure has not really been initiated.Compared with the issue of legality review standards,which has been studied more by the academic community,it may be better to change the angle now,and turn the perspective to examine the attitude of the judicial organs to the plaintiff’s acceptance of the supplementary review before the start of the supplementary review.Through the retrieval and analysis of cases,it is found that the incidental examination system has the problem of low rate of initiation of examination.Through the analysis of legal clauses and cases,it is found that there are three main reasons for the failure to start: including that the time for the supplementary review does not meet the regulations,the documents do not meet the scope of the supplementary review,and the documents requested by the plaintiff for the supplementary review are not the basis for the original administrative action.There are many ambiguities in this,such as the court’s too strict time limit on normative documents,the unclear identification and identification of normative documents,and the too direct and narrow determination of the "basis" between administrative normative documents and administrative actions,etc.question.The emergence of this problem is not only related to the unclear system details,but also to the status of the judiciary and the lack of court review willingness.In order to improve the status quo of the low initiation rate of administrative normative documents with incidental review,this paper believes that the time for filing incidental review should be relaxed,and the court of second instance should be given certain review powers;Identify the basis for the original administrative action.And through the improvement of judicial interpretations,the introduction of guiding cases to clarify.With the advancement of the construction of a rule of law government,more and more attention has been paid to the supervision of normative documents.Among the various supervision methods,judicial supervision,as an important external supervision method,should continue to play a role.Under the current predicament of judicial incidental review,only after problems are discovered,relevant concepts can be clarified through discussion of jurisprudence and practice,and to the extent permitted by law,try to make room for the initiation of review as much as possible.Under the requirements of substantively resolving administrative disputes,ensuring fair trial of cases,and protecting the legitimate rights and interests of citizens,the court should take the initiative to fully review the administrative normative documents involved in administrative litigation,which is also conducive to the resolution of disputes and the protection of citizens.Protection of legitimate rights and interests.