The Effectiveness Dilemma of Incidental Review of Regulatory Documents and the Way Out
The system of incidental review of regulatory documents refers to the system whereby citizens,legal persons or other organizations may incidentally request a review of the regulatory documents on which an administrative act is based when instituting litigation against the administrative act.In judicial practice,this system is characterized by a low rate of initia-tion and a low rate of violation determination.Judges tend to adopt a particular way to evade in-cidental review of regulatory documents,thereby leading to the effectiveness dilemma.The di-lemma can be analyzed at two levels:the regulatory level and the factual level.Firstly,the in-cidental review model has institutional limitations in that it is not an independent litigation,but only a litigation request.The judge's refusal to review or his review with erroneous results will not lead to a negative evaluation,thus providing the possibility for the judge's evasion of relat-ed responsibilities.Secondly,the sectionalized management system of courts produces reverse incentives for judges to evade review for the purposes of enhancing trial efficiency and avoiding potential risks.Thirdly,the complex power field formed by the policy implementation function of the courts and the dominant position of executive authorities has prompted judges to consider the political and social effects of judgments and other extralegal factors,thus exacerbating their review-evading conduct.There are several approaches to getting out the dilemma.Firstly,ad-justing judges'adjudication conduct by following the normative adjudication thinking so that they can consciously avoid through methodology the rigid application of law that leads to formal review.Secondly,continuously promoting the reform of the judicial management system,break-ing down the institutional barriers that constrain judges'adjudication,clarifying the system of judges'responsibilities centered on the"responsibility for adjudication",and establishing an incentive mechanism for encouraging judges to conduct incidental reviews.And finally,impro-ving the environment for judges'adjudication.Party and government organs should support and uphold the way in which courts participate in state governance and assist the judges in reviewing regulatory documents incidentally.Administrative authorities must link up with the incidental review system through administrative self-control,and supervisory authorities and authorities re-sponsible for the recordation of regulatory documents should give full play to their supervisory duties,so as to jointly promote the implementation of the incidental review system.
NETL
NSTL
万方数据
维普
