规范性文件附带审查制度研究

Research on the System of Supplementary Examination of Normative Documents

近年来,规范性文件附带审查制度已在我国逐步确立,但在全面依法治国的背景下,规范性文件附带审查还存在着诸多问题,严重影响了规范性文件附带审查制度的有效实施,表现为请求主体不完善、审查方式不明确、审查范围存在局限性以及审查建议落实效果不力等。规范性文件是具体行政行为的直接依据,其合法与否将会直接影响到具体行政行为的合法性。我国规范性文件附带审查制度的完善应从增加启动主体、确立庭审审查方式、适当扩大审查对象以及增强司法处理的强制力等方面入手,同时借鉴英美国家的有益经验,形成科学、高效的制度模式。

In recent years,the incidental review system of normative documents has been gradually established and developed in China.In 2014 the newly revised "administrative procedural law" established the normative documents attached censorship, implemented in 2018 the supreme people’s court about applicable <administrative procedure law of the People’s Republic of China> the interpretation of further clear about the request for a review time,listen to the views of the enacting body and processing after the review,October 30,2018,the supreme people’s court for the first time to release the typical cases of administrative litigation incidental review of regulatory documents and for the judicial practice provides guidance on review of regulatory documents.But in the new era under the background of the rule of law,with review of regulatory documents still exist many problems,seriously affected the normative documents along with the effective implementation of the censorship,embodied in the request body is imperfect,examining way is not clear,scope of review have limitations as well as the effect of examination Suggestions to carry out the poor,and many other aspects.Normative documents are the direct basis for specific administrative ACTS,and their legitimacy will directly affect the legitimacy of specific administrative ACTS.The improvement of the incidental review system of normative documents in China should be carried out from the aspects of increasing the subject of initiation,establishing the examination method of trial,appropriately expanding the examination objects and enhancing the coercive force of judicial treatment.Meanwhile,the beneficial experience of Britain and America should be used for reference to form a scientific and efficient system model.