行政规范性文件审查制度的规范建构——以劣迹艺人“封杀令”为例

修改后的《行政诉讼法》明确将行政规范性文件纳入司法审查范围,确立了以司法权制衡行政权的基本框架,但实践中审查标准的模糊甚至冲突使得许多规范性文件并未能进入合法性审查程序,即使进入也并未认定为违法。这与规范性文件备案审查制度设计的初衷相悖,为此在加强司法监督的同时,需重新定义提起司法审查的适格主体、放宽审查范围;同时进一步矫正与完善行政自我审查,从制定伊始即寻求内部审查与外部监督。该文结合我国现有制度经验,以期有效提升规范性文件审查力度,为社会事务的管理提供正当的法律约束力。

The Normalized Construction of Review System of Administrative Normative Documents:A Case Study on the Ban of Tainted Stars

Administrative normative documents have been added to the scope of judicial review in the revised "Administrative Litigation Law", which establishes the basic framework wherein administrative power is checked and balanced by jurisdiction. In practice, however, many normative documents fail to be included in the procedure of judicial review due to the ambiguous and contradictory reviewing standards. Even though they are reviewed, these documents are usually not identified as illegal ones. This is contrary to the original intention of the design of the normative document filing and reviewing system. For this reason, on the one hand, judicial supervision should be strengthened. On the other hand, the qualified parties that can initiate judicial review need to be redefined and the scope of review ought to be expanded. Meanwhile, administrative self-examination should be further improved via internal review and external supervision at the initial stage. This paper, based on current-system experience in China, expects to enhance the reviewing validity of normative documents effectively, so that proper legal binding force can be applied to the administration of social affairs.