权利救济视角下备案审查与司法诉讼的制度衔接——以《备案审查决定》新增条款为基础

The Cohesion of Filing Review System and Judicial Litigation System from the Perspective of Rights Remedy:Based on the Added Provisions of the Decision on Filing Review

《全国人民代表大会常务委员会关于完善和加强备案审查制度的决定》第6条和第14条的规定,为备案审查制度衔接司法诉讼制度的进一步细化提供了规范空间。从保障当事人权利出发,可以具体搭建以下制度衔接:当事人提起备案审查引发的备案审查决定对已决原因案件、未决原因案件的两类溯及制度,备案审查决定作出后对在审案件及审判终结案件的两类普遍溯及制度。在程序上需要借助诉讼中止、恢复诉讼、再审等机制与备案审查形成联动,且当事人根据备案审查决定提出再审应受到再审期限的限制,具体按照“有新的证据,足以推翻原判决、裁定”为由,自知道备案审查决定作出之日起六个月内提出,但刑事诉讼除外。目前备案审查实践中普遍存在的书面审查意见,其效力的发挥需以制定机关实际废止、修改规范性文件作为前提和具体起算点,且比照备案审查决定予以适用。

The provisions of Article 6 and Article 14 of the Decision of the Standing Committee of the National People’s Congress on Improving and Strengthening the Filing Review System provide normative space for the further cohesion of filing review systems and judicial litigation system.From the standpoint of safeguarding the rights of the parties,the following cohesion of the system can be specifically constructed:two types of retrospective systems for cases of res judicata and cases of unresolved causes triggered by the filing review by the parties,and two types of general retrospective systems for cases undergoing trial as well as for cases in which the trial is finalized after the filing review decision has been made.Firstly,where a party discovers in the course of litigation that a normative document is in violation of a higher law and may affect the outcome of a judgment,the party may file an application,which the trial court will report to the Supreme People’s Court on a case-by-case basis and a request for review will be submitted to the Standing Committee of the National People’s Congress(NPCSC)or other filing review department,and the litigation will be resumed after the NPCSC reviews the case and makes a decision on the handling of the matter,and the law will be applied in accordance with the content of the decision on the filing review.Secondly,after a party has filed an application in the course of litigation that a normative document is in violation of a higher law,and the court has rejected the application,the party may,after the litigation has been concluded,directly submit a proposal for review to the filing review department,and after the filing review department has decided the document,it may,on the basis of the provision of the procedural law that“there is new evidence sufficient to overthrow the original judgment or ruling”.Within six months from the date on which it becomes aware of the issuance of the decision on the filing review,the court shall initiate a retrial,and the court shall decide the case in accordance with the results of the filing review(there is no time limit for criminal proceedings).Thirdly,after the filing review decision is made,the people’s Court shall be bound by it in cases under trial,except for cause cases,which shall be bound by it first,and in the future,China shall determine that normative documents declared to be in violation of the superior law by the filing review department shall not be applied to cases under trial.For filing review decisions that expire periodically,they shall not be retroactively applied to cases under trial,except in exceptional cases.Fourth,the issue of the retroactivity of the filing review decision to the people’s Court’s resolved cases is complex,and the legislation can adopt a“specific enumeration+fundamental proviso”approach,confirming in due course the types of resolved cases on which a consensus has been reached,such as criminal cases,and weighing up other cases on a case-by-case basis.Procedurally,it is necessary to use mechanisms such as suspension of proceedings,resumption of proceedings,and retrial to link up with the filing review.At present,the filing review practice prevails in the written review opinion,the effect of its play on the enactment of the organ actually repeal,modify normative documents as a prerequisite and specific starting point,and apply,mutatis mutandis,the record review decision to be applied.