行政法治发展过程中的参照规章

On the Reference to the Administrative Regulations in the Process of Development of Administrative law

《行政诉讼法》规定法院审理行政案件参照规章,实质上是赋予了法院对规章一定的司法审查权。随着行政诉讼实践的发展,参照规章也经历了标准逐步明确、范围不断扩大以及过程和结果趋于公开的发展脉络。本文认为,参照规章的做法局限了法院审查规章的空间和效能,在适时顺应行政法治发展趋势的前提下,或可期待参照规章转变为规章附带审查甚至探索实现规章直接审查。这一发展趋势,既有利于实现行政诉讼法强化监督行政权力的立法目的和功能价值,也有利于促进我国行政法治的良健发展。

The people＇s courts should refer to the administrative regulations in the handling of administrative cases according to the 《Administrative procedural law》,which vests the people＇s courts with the power to review on regulations in essence.With the development of the practice of administrative litigation,It is possible to tease out the development vein of reference to regulations,which is that its standards have been gradually clarified,ranges continuously expanded,and the process and results have become more open.In view of the reference to regulations limiting the space and effectiveness of the court reviews the regulations,in time to comply with the development trend of administrative rule of law,maybe we can look forward to the reference to regulations turns into the incidental review,even direct review.Which is beneficial to not only the realization of strengthen the supervision of administrative power,but also the promotion of well-developed of administrative rule of law.