| In 2017,the Supreme People’s Court applied the normative theory of protection to China’s judicial practice in Liu Guangming v.Zhangjiagang Municipal People’s Government Administrative Reconsideration.Since then,the theory of protection norms has become the focus of administrative law theory,which has aroused violent repercussions and extensive discussions.As the core method of subjective public rights judgment in Germany,the protection normative theory emphasizes the rights and status of individuals to the state,and after the historical transmutation of the old protection norm theory and the new protection norm theory,it finally establishes the core essence of private interest protection,which distinguishes subjective public rights from reflective interests,and incorporates legally worthy interests into the scope of administrative litigation as much as possible,and expands the protection of private interests to the field of construction law and environmental law through the German "pigsty case",responding to the current needs of rights expansion.At present,China’s administrative litigation plaintiffs’ qualification determination adopts the "interest standard",and the contradiction between the ambiguity of this standard and judicial certainty is precisely the practical need for China to introduce the theory of protection norms.However,after the introduction of this theory into China’s judicial practice,due to the solidification of the understanding of protection normative theory and the rough and indirect research,it once caused the trend of tightening the qualifications of plaintiffs in administrative litigation,and the phenomenon of local courts applying machinery without argumentation also appeared.The fundamental reason is China’s one-sided understanding of administrative litigation rights and the theoretical transplantation of only protection normative theories but not subjective public rights.Whether and how the protection normative theory can be applied to administrative litigation in China has become an important debate in the current theoretical circles.Even if there are many controversies in the academic circles,we should also see that the judicial application of the protection normative theory in China is realistic and reasonable,and the openness of the theory itself is the charm of the theory for a hundred years,which is in line with the spirit of China’s constitution and litigation positioning,making it locally adaptable,and also providing strong functional value for China’s administrative litigation.In view of the problems arising from the protection norm theory in the application of administrative litigation in China,it is urgent to reconstruct the structure of administrative litigation rights,and it is a good excessive method to apply the protection norm theory in stages combined with the German two-tier theory.In order to make the determination of the qualification of plaintiffs in administrative litigation more operational,the theory of protection norms can be used to construct specific steps for the determination of plaintiffs’ qualifications.In addition,courts should follow certain rules of legal interpretation when applying the theory of protection norms,and appropriately inject constitutional norms to enhance rationality.Through this series of optimization paths,a protection normative theory application model that is in line with China’s administrative litigation is finally constructed,and a judgment system for plaintiffs’ administrative litigation qualifications is established and improved,and the reform of China’s administrative adjudication system is promoted. |
