Research On Judicial Review Standards Of Administrative Normative Documents

Administrative normative documents have played an irreplaceable role in the effective management of administrative affairs.However,due to the imperfection of the national legal system and the lack of legal concept of administrative organs,administrative normative documents have also exposed many problems.For example,the administrative purpose stipulated in the document is contrary to the basic principles of superior law.The loss caused by administrative means to the administrative counterpart is far greater than the income that can be brought by the realization of administrative objectives.Although the content of the document conforms to the provisions of the law,but because of the omission of an important link in the formulation process,it causes problems such as illegal in essence.The administrative Procedure Law and judicial interpretation provide a supplementary review system to solve these problems and the court is empowered to review normative documents.But from the effect of judicial practice,the system has not played a good effect.The criteria adopted by the court in the review are basically the five situations listed in Article 148 of the Administrative Procedure Law Interpretation of 2018,And only for formal legal censorship.The basic principles of law,proportionality of means to ends and due process are the basic requirements of substantive legitimacy,The examination is legal in substance on the basis of legal form,The basic principles and spirit of law with macroscopic guiding role are incorporated into the consideration of administrative normative documents,Interrogated whether administrative normative documents are "proper" and "reasonable".In addition,the "Legislation Law" and "Supervision Law" can also find out whether the examination of laws and regulations,rules and administrative normative documents is "appropriate".Therefore,it is necessary to introduce substantial legality examination standard in judicial practice.This paper first introduces the significance of studying the incidental review standard of administrative normative documents from the Angle that judicial power should effectively supervise the executive power.The first chapter introduces the judicial review system and defines the administrative normative documents from the provisions of The State Council: An administrative act not authorized by law,and there are many kinds of normative documents,moreover,it is binding on both the administrative organ and the counterpart,however,there are some problems such as illegal reduction of rights or addition of obligations and lack of supervision.Then the article examines the characteristics of judicial review in China the scope of judicial review is small,to initiate judicial review requires the premise of "administrative dispute",the court’s decision cannot influence other courts.The second chapter analyzes the theory of judicial review standard.First of all,this paper explains the meaning of judicial review standard: “This is a scientific conclusion made by the court based on continuous exploration.” In chapter two,this paper enumerates three kinds of judicial review standards commonly adopted by courts in trial practice,through the analysis of these three standards,the existing problems in the current judicial review are found.The review of the development process is not rigorous enough.There is no clear standard for the examination of the contents of administrative normative documents.The third chapter puts forward the necessity of the existence of the substantive legality examination standard according to the problems of the above examination standard.The material legality examination standard can effectively restrain the discretion,dissolve the administrative dispute substantively and make up the deficiency of the single legality examination standard.Chapter four puts forward the criterion of substantive legality on the basis of summarizing the foregoing.To examine whether the interpretation of the concept of uncertain law by the administrative organ conforms to the legislative principle and purpose of superior law and the author uses this standard to analyze the actual cases.Whether the administrative purpose and means accord with the requirement of proportion principle.Whether the formulation procedure of administrative normative documents conforms to the principle of due process.