行政规范性文件司法适用的基本进路
发布时间：2019-05-31 16:44
【摘要】：2014年11月《行政诉讼法》的修改,明确了规范性文件的附带审查制度,但是仅限于国务院部门和地方各级人民政府及其部门制定的规范性文件,即规章以下的行政规范性文件。因其非立法性1,只是政策性规范性文件,而不是法律性规范性文件,可称为“法外规范性文件”。本文所称行政规范性文件(以下简称“规范性文件”),指所有规范与调整国家行政事务的具有普遍约束力的文件,包括法律、行政法规、地方性法规、规章和法外规范性文件。因为对规范性文件的合法性审查和冲突审查是正确适用法律的前提,在个案中对规范性文件的审查也是法院应该有的权力,规章及其以上的规范性文件在适用之前也要进行审查,以保证正确适用。司法实践中也一直存在着这种审查,但是,我国目前只明确规定了法外规范性文件的审查。目前仅法外规范性文件的审查适用有明确规定,其他规范性文件没有明确规定,另外,规范性文件的审查依附于个案。种种原因,使得规范性文件的司法适用常常很隐蔽,基本路径不明。有学者做过调查法:法官在遇到下位法抵触上位法时,常常直接选择适用,并不在判决书中表述。2规范性文件审查适用基本都靠法官的经验,审查的流程很不明晰。所以,很有必要对规范性文件的审查适用的基本路径进行梳理。行政规范性文件司法适用的基本进路,也即审查适用的流程,主要分为四个阶段:启动、审查、适用与相关配套措施。第一:启动,分为法院主动启动和当事人申请启动两种方式。当事人申请启动仅限于法外规范性文件的审查适用。法院可以对所有规范文件启动审查,但是必须进行一个初步的判断,判断规范文件的性质:(1)如果是法律,则不启动任何审查;(2)如果是行政法规、地方性法规,则不能启动合法性审查,仅审查其是否抵触上位法;(3)如果是规章和法外规范性文件,则启动合法性审查,并审查其是否抵触上位法。第二:审查,审查分为合法性审查和相抵触审查。根据《立法法》的第96条的规定,合法性审查主要审查是否超越权限、程序是否合法。相抵触审查,根据规范语句的要素,主要从适用条件、权利义务和法律后果三方面是否冲突进行审查;第三,适用,法院根据审查结果做出适用决定:合法则予以适用,不合法则拒绝适用;抵触上位法则必须选择适用上位法。第四,相关配套措施,如果审查认为规范性文件不合法,还需要向有关机关提交司法建议,并将审查适用决定通过某种方式予以公告。
[Abstract]:In November 2014, the amendment to the Administrative Procedure Law defines the system of the accompanying review of the normative documents, but is limited to the normative documents formulated by the people's governments at the State Council and the local people's governments at various levels and their departments, that is, the administrative normative documents under the rules. Because of its non-legislative nature, it is only a policy-oriented document, not a normative document, which can be referred to as a "Extrajudicial normative documents". The administrative normative documents referred to herein (hereinafter referred to as" "Normative documents" ") refer to all documents that are generally binding to the adjustment of the administrative affairs of the State, including laws, administrative regulations, local regulations, regulations and extra-legal normative documents. Because the review of the legitimacy of the normative document and the review of the conflict are the prerequisite for the proper application of the applicable law, the review of the normative documents in a case is also the power, regulation and the normative documents that the court should have before it is applied, in order to ensure the correct application. This review has also been in the practice of the administration of justice, but only the review of the legal normative documents is currently being set out in my country. At present, only the review of the legal normative documents is applicable, and the other normative documents are not clearly defined, and the review of the normative documents is attached to the case. For various reasons, the judicial application of the normative documents is often concealed and the basic path is unknown. Some scholars have done a survey: when the judge is in conflict with the upper-level law, the judge often chooses the application directly, and is not stated in the judgment. The review of the normative documents is applicable to the experience of the judge, and the process of the review is not clear. Therefore, it is necessary to comb the basic path applicable to the review of the normative documents. The basic route for judicial application of administrative normative documents, that is, to review the applicable process, is mainly divided into four stages: start-up, review, application and relevant supporting measures. First: Start-up, divided into two ways: the active start-up of the court and the application of the party's application. The application of a party's application was limited to the application of the review of the legal normative documents. The court may initiate a review of all normative documents, but a preliminary judgement must be made to determine the nature of the normative document: (1) if it is a law, no review is initiated; (2) if it is an administrative, local, regulatory, legal review cannot be initiated, Review only whether it is in conflict with the upper-level law; (3) if it is a regulatory and extra-legal document, initiate a review of the legality and review whether it is in conflict with the upper-level law. Second, the review and review are divided into the legality review and the phase-conflict review. In accordance with the provisions of article 96 of the United Nations Law on the Law of the Sea, the validity of the review is to examine whether it is beyond the authority, and that the procedure is legal. In case of a conflict review, according to the elements of the specification statement, whether or not the conflict should be examined from the three aspects of applicable conditions, rights and obligations and legal consequences; and thirdly, if applicable, the court shall make the applicable decision according to the examination result: the legality is applicable, and the application is not lawful; The applicable position method must be selected if the upper-level method is in conflict with the above-mentioned method. Fourth, relevant supporting measures, if the review considers that the normative document is not legal, it is also necessary to submit a judicial recommendation to the relevant authorities and to make a public announcement in a way that the application of the review applies.
【学位授予单位】：河南师范大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.1
本文编号：2489857
[Abstract]:In November 2014, the amendment to the Administrative Procedure Law defines the system of the accompanying review of the normative documents, but is limited to the normative documents formulated by the people's governments at the State Council and the local people's governments at various levels and their departments, that is, the administrative normative documents under the rules. Because of its non-legislative nature, it is only a policy-oriented document, not a normative document, which can be referred to as a "Extrajudicial normative documents". The administrative normative documents referred to herein (hereinafter referred to as" "Normative documents" ") refer to all documents that are generally binding to the adjustment of the administrative affairs of the State, including laws, administrative regulations, local regulations, regulations and extra-legal normative documents. Because the review of the legitimacy of the normative document and the review of the conflict are the prerequisite for the proper application of the applicable law, the review of the normative documents in a case is also the power, regulation and the normative documents that the court should have before it is applied, in order to ensure the correct application. This review has also been in the practice of the administration of justice, but only the review of the legal normative documents is currently being set out in my country. At present, only the review of the legal normative documents is applicable, and the other normative documents are not clearly defined, and the review of the normative documents is attached to the case. For various reasons, the judicial application of the normative documents is often concealed and the basic path is unknown. Some scholars have done a survey: when the judge is in conflict with the upper-level law, the judge often chooses the application directly, and is not stated in the judgment. The review of the normative documents is applicable to the experience of the judge, and the process of the review is not clear. Therefore, it is necessary to comb the basic path applicable to the review of the normative documents. The basic route for judicial application of administrative normative documents, that is, to review the applicable process, is mainly divided into four stages: start-up, review, application and relevant supporting measures. First: Start-up, divided into two ways: the active start-up of the court and the application of the party's application. The application of a party's application was limited to the application of the review of the legal normative documents. The court may initiate a review of all normative documents, but a preliminary judgement must be made to determine the nature of the normative document: (1) if it is a law, no review is initiated; (2) if it is an administrative, local, regulatory, legal review cannot be initiated, Review only whether it is in conflict with the upper-level law; (3) if it is a regulatory and extra-legal document, initiate a review of the legality and review whether it is in conflict with the upper-level law. Second, the review and review are divided into the legality review and the phase-conflict review. In accordance with the provisions of article 96 of the United Nations Law on the Law of the Sea, the validity of the review is to examine whether it is beyond the authority, and that the procedure is legal. In case of a conflict review, according to the elements of the specification statement, whether or not the conflict should be examined from the three aspects of applicable conditions, rights and obligations and legal consequences; and thirdly, if applicable, the court shall make the applicable decision according to the examination result: the legality is applicable, and the application is not lawful; The applicable position method must be selected if the upper-level method is in conflict with the above-mentioned method. Fourth, relevant supporting measures, if the review considers that the normative document is not legal, it is also necessary to submit a judicial recommendation to the relevant authorities and to make a public announcement in a way that the application of the review applies.
【学位授予单位】：河南师范大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.1
【参考文献】
相关期刊论文 前10条
1 叶霖;;论新《行政诉讼法》的规范性文件附带审查制度再完善[J];法制与社会;2016年19期
2 姜明安;;对新《行政诉讼法》确立的规范性文件审查制度的反思[J];人民法治;2016年07期
3 胡建淼;;法律规范之间抵触标准研究[J];中国法学;2016年03期
4 余军;张文;;行政规范性文件司法审查权的实效性考察[J];法学研究;2016年02期
5 袁勇;;规范与事实之间的行政争议解决机制:现状、问题及对策[J];广西社会科学;2016年01期
6 武芳;;规章以下行政规范性文件制定主体研究——基于新《行政诉讼法》第五十三条的分析[J];江汉学术;2015年06期
7 王红卫;廖希飞;;行政诉讼中规范性文件附带审查制度研究[J];行政法学研究;2015年06期
8 杨士林;;试论行政诉讼中规范性文件合法性审查的限度[J];法学论坛;2015年05期
9 程琥;;新《行政诉讼法》中规范性文件附带审查制度研究[J];法律适用;2015年07期
10 郑磊;卢炜;;“旧”下位法的适用性——以第5号指导性案例、第13号行政审判指导案例为焦点[J];政治与法律;2014年07期
相关会议论文 前1条
1 张雨梅;高宏亮;;回归与再造:规范性文件司法审查强度研究——以105则行政诉讼案例为分析样本[A];尊重司法规律与刑事法律适用研究（上）——全国法院第27届学术讨论会获奖论文集[C];2016年
，本文编号：2489857
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