Abstract：Administrative Procedure Law has established a system of incidental review of normative documents, but in practice, there appears to be a problem of implementation deviation. Current research on the system of incidental review of normative documents is mostly limited to partial research, and it is difficult to reveal a complete picture of the system. This paper makes an overall evaluation of the implementation of the system using empirical methods, based on a research sample of 907 cases which have occurred since the implementation of the incidental review system.
The following problems in the implementation of the system of incidental review of normative documents were found by the study:
Firstly, due to the ambiguity and uncertainty of the meaning of ″just cause″, the rigor of the standards for identifying normative documents and the strict standards for identifying the relationship between normative documents and administrative acts, most normative documents fail to proceed to the review process. For example, the 82.2% cases which occurred in 2015, the 55% cases in 2016, the 70% cases in 2017, and the 70.1% cases in 2018 did not proceed to review.
Secondly, due to the lack of clarity of the review criteria, most of the normative documents were not considered illegal on the grounds that the normative documents did not contradict, conflict or violate the superior law. For example, only 4.6% cases in 2015 , 1.1% cases in 2016, 2.5 % cases in 2017 and 1.8 % cases in 2018 were considered illegal.
The above-mentioned problems have made the system of incidental review of normative documents almost useless, and have failed to realize the original intention of the system. From the point of view of strengthening the supervision of normative documents, the system of incidental review of normative documents should be revised as follows:
Firstly, the court has an obligation to explain ″just cause″. When the plaintiff brings an administrative action and if there are regulatory documents that may be subject to review, the court should explain to the plaintiff and the plaintiff will decide whether to initiate incidental review. The fact that the plaintiff has not made a request for review after the court’s explanation should be deemed to be unjustified by the plaintiff in order to urge the court to fulfill the obligation of interpretation in time and to solve the problem of ambiguity in the meaning of ″just cause″.
Secondly, normative documents should be classified and identified. It is proposed that the Supreme People’s Court and the Department of Justice jointly establish an administrative regulation database in response to the difficulty of distinguishing between administrative regulations and regulatory documents issued by the executive branch, the latter of which has the power to make regulations. The court should adopt a looser standard to identify non-regulatory documents as long as they are not obvious specific to administrative acts.
Thirdly, the connection between the normative documents and administrative action is determined by the loose standard. So long as there is a certain connection between the normative document and the administrative act, the normative document should be regarded as the "basis" of the administrative act. And when there is a disagreement as to whether there is a link, it should be interpreted in favor of the plaintiff.
Finally, the formulation standard for normative documents should be taken as the standard for the examination of normative documents. In the review of normative documents, the court should first examine whether there is a superior law in formulating the normative documents, and then examine whether the normative documents are stipulated in the scope of the superior law. If the normative document is not based on the superior law or beyond the scope of the superior law, the normative document is suspected of violating the law.
In this sense, the criteria for reviewing normative documents should be more stringent.
王春业. 论规范性文件一并审查制度的实践偏离与校正——以907个案例为研究样本[J]. 浙江大学学报(人文社会科学版), 0, (): 1-.
Wang Chunye. Deviation and Corrections in the System of Reviewing Normative Documents: A Sample of 907 Cases. JOURNAL OF ZHEJIANG UNIVERSITY, 0, (): 1-.