论行政规范性文件附带审查中“依据”的司法认定

On Judicial Affirmation of Basis in Attached Review of Administrative Normative Documents

作为附带审查对象的行政规范性文件,必须与所诉行政行为之间存在依据关系,这是合法性审查的前提。但司法实践中遇到了形形色色的情形,产生了对依据关系如何认定的司法争议,也反映了对依据关系认定的复杂性。出于对规范性文件有效监督和司法校正的目的,法院应当从更为宽松的角度来认定规范性文件的依据关系,只要该规范性文件与所诉行政行为存在一定的关联性,无论是直接依据还是间接依据、形式依据抑或实质依据,无论是被告承认的依据或虽不承认但实际作为依据等情形,法院都应该作为依据来认定,并对规范性文件进行合法性审查。

A basis relationship between administrative normative documents which are objects of attached review, and administrative act in litigation must exist, which is the prerequisite for legitimacy review.However, in judicial practice, there are varied circumstances, which triggers judicial disputes over how to affirm the basis relationship and also reflects the complexity of such affirmation.In order to effectively supervise and judicially correct normative documents, courts should affirm the basis relationship of normative documents from a looser perspective.As long as normative documents are correlated with administrative act in lawsuit to some extent, no matter it’s a direct basis or indirect basis, formality basis or substantial basis, and no matter it’s a basis acknowledged by the defendant or although it’s not admitted but regarded as a basis, courts should deem them as a basis and conduct legitimacy review on normative documents.