Administrative normative documents are an important basis for law enforcement by administrative organs, and are also the main focus of disputes between administrative organs and administrative counterparts in judicial practice. Since the revised Administrative Procedure Law in 2014 will normative documents into the scope of judicial review, China formally established the administrative litigation normative documents and review system. This paper intends to sort out the judicial review of administrative normative documents from the relevant legal provisions, judicial typical cases, for the reader's reference.

Ⅰ. normative documents review system interpretation

(Ⅰ) the law gives the administrative relative to bring up the right to review the normative documents together

In our country, the administrative normative documents have the right to formulate a wide range of subjects, the number of documents is huge, a large number of administrative normative documents, administrative organs to carry out administrative law enforcement activities is an important basis, almost covering all areas of administration, powerful maintenance of public order, standardize the law enforcement standards around.

But at the same time there are some real problems, such as some normative documents review procedures are not standardized enough, individual normative documents there are conflicts, when these normative documents become the administrative organs of the law enforcement basis for the administrative relative, whether reconsideration or litigation, it is very difficult to maintain their legitimate rights and interests.

Based on the consideration of safeguarding the legitimate rights and interests of the administrative relative person, the administrative litigation law of the People's Republic of China, which was amended and adopted on November 1, 2014, has increased the content of the people's court's review of the administrative normative documents, that is to say, the citizens, legal persons or other organizations think that the normative documents based on the administrative act is not lawful, and when filing a lawsuit or reconsideration of the administrative act, they can also request for review of the normative documents. Review.

(Ⅱ) The content of the review of normative documents

In order to further promote the judicial review system for administrative cases, and increase the benign interaction between administrative organs and judicial organs. The Supreme People's Court issued the "Interpretation on the Application of the Administrative Procedure Law of the People's Republic of China" (Legal Interpretation [2018] No. 1), which made more detailed provisions on the review content of administrative normative documents from the elements of competence, procedural elements, etc., which are elaborated as follows:

From the elements of competence, first of all, the normative documents shall not conflict with the higher law, and when they conflict with the provisions of the higher law, the normative documents shall not, in principle, have legal effect; secondly, the organ that formulates the normative documents shall have the explicit authorization of the laws and regulations and strictly follow the scope of the legal authorization, for example, if the restriction of personal freedom, the administrative penalty of suspending the business license can be set only by the laws and administrative regulations, the normative documents Can not provide for the content.

From the viewpoint of procedural elements, the documents that do not fulfill the statutory approval procedure and public release procedure and seriously violate the formulation procedure are unlawful normative documents, for example, according to the "Administrative Measures for the Formulation of Normative Documents on Taxation" (Decree of the State Administration of Taxation No. 53), the normative documents on taxation shall be issued by the person-in-charge of the formulation authority, and the drafting department releases them to the outside world by way of public announcement, and they have a separate numbering with the form of "State Administration of Taxation No. XX of XX years", the documents of the above procedure are not legal normative documents.

In practice, some of the normative documents have broken through the provisions of the supreme law, the formulation of the more rough, the formulation of the procedure is not rigorous, not standardized and other issues, but these normative documents have not been repealed, are still in force, and are invoked by the administrative organs as the basis for law enforcement, if the relative of a specific administrative act is not satisfied with the specific administrative act made by the administrative organ on the basis of the above normative documents, it can be in the reconsideration or litigation, together with a request for a review of the normative document, the administrative organ shall not be able to take any action against the normative document. If the specific administrative act relative to the administrative organ based on the above normative documents made by the specific administrative act, can in the reconsideration or litigation, and mention the normative documents incidental review, in order to effectively safeguard their legitimate rights and interests.

(Ⅲ) The impact of the review of normative documents on individual cases

According to the provisions of article 53 and article 64 of the administrative procedure law, the people's court in the administrative case, has the right to review the normative documents based on administrative behavior. Where the review finds that the normative document is unlawful, it shall not be used as a basis for determining the lawfulness of the administrative act, and shall make recommendations to the enacting authority on how to deal with the matter.

Therefore, the results of the review of the legitimacy of normative documents, often can affect the final outcome of the case. For example, Zheng Mouqin v. People's Government of Wenling City, Zhejiang Province, land administrative approval case", "Yuan Moubei v. People's Government of Yudu County, Jiangxi Province, the price of administrative levy case" and other cases, because the administrative organ of the administrative act of the specific administrative act of the basis by the court was ruled to be unlawful. Normative documents, resulting in the administrative organs of the administrative act is invalid because of no basis in law, so as to achieve the administrative relative for the case effect, better safeguard the legitimate rights and interests of the administrative relative.

Ⅱ. a tax-related normative documents review case analysis

(Ⅰ) Brief description of the case

Chen Mou, due to the purchase of a SGM6475DAX2 Buick sedan, went to the Broadcasting District Tax Bureau to declare and pay the vehicle purchase tax on March 21, 2018, and declared the taxable price of RMB 211,452.99. The Broadcasting District Tax Bureau used the Golden Tax III tax management system to scan the vehicle purchase tax return form provided by the Plaintiff, Chen Mou, and the certificate of conformity for the entire motor vehicle of the People's Republic of China, and the The minimum taxable price of the system was RMB 237,000.00.The minimum taxable price implemented on March 21, 2018 was based on the Notice of the State Administration of Taxation on Approving the Minimum Taxable Price of the 67th Edition of the Vehicle Acquisition Tax (Tax General Letter [2018] No. 46). In accordance with Article 7 of the Provisional Regulations of the People's Republic of China on Vehicle Acquisition Tax, Article 12 of the Measures for the Administration of Vehicle Acquisition Tax Collection and the Notice of the State Administration of Taxation on the Approval of the Minimum Taxable Price of the 67th Edition of the Vehicle Acquisition Tax (Taxation General Letter [2018] No. 46), the Broadcasting District Taxation Bureau completed the collection of RMB 23,700.00 from Chen for the purchase of the taxable vehicle for his own use in accordance with the statutory tax rate of 10%. The act of levy. Chen was dissatisfied with the administrative act of the Baozhou District Taxation Bureau in levying vehicle purchase tax on him, and after administrative reconsideration, he sued the Zunyi Taxation Bureau, the reconsideration authority, to the People's Court, requesting to revoke the administrative act of the Baozhou District Taxation Bureau in levying vehicle purchase tax on him on March 21, 2018, and requesting to conduct a comprehensive review of the "Notice of the State Administration of Taxation on the Approval of Minimum Taxation Price of Vehicle Purchase Tax of the 67th Edition", on the basis of which the act of levying was based, and to conduct a full review of the legality to be comprehensively examined.

(Ⅱ) Focus of Dispute and Opinions of the Parties

The focus of the dispute in this case: the legality of the Circular of the State Administration of Taxation on Approving the Minimum Taxable Price of the 67th Edition of the Vehicle Acquisition Tax (General Taxation Letter [2018] No. 46) on which the tax levying behavior of the tax authorities is based.

The plaintiff argued that the Notice of the State Administration of Taxation on Approving the Minimum Taxable Price of the 67th Edition of the Vehicle Acquisition Tax (Tax General Letter [2018] No. 46) violated the relevant provisions of the Measures for the Administration of the Formulation of Normative Documents on Taxation, and it should be an unlawful normative document.

The tax authorities held that the Circular of the State Administration of Taxation on Approving the Minimum Taxable Price of the 67th Edition of the Vehicle Acquisition Tax drafted, audited and issued by the State Administration of Taxation in accordance with the provisions of the Regulations on the Handling of Official Documents by Party and Government Organs was lawful. Since the General Taxation Letter [2018] No. 46 is a lawful document formulated by the State Administration of Taxation, the tax levy in accordance with the document also complies with the provisions of the administrative rules and regulations and should be a lawful tax levy.

The Court held that according to Article 5(1) of the Law of the People's Republic of China on Administration of Tax Collection, the competent tax authorities of the State Council are in charge of the administration of national tax collection. The State Administration of Taxation and the local tax bureaus in each region shall carry out the collection and management of taxes in accordance with the scope of tax collection and management prescribed by the State Council respectively. Article 7 of the Provisional Regulations of the People's Republic of China on Vehicle Acquisition Tax of the State Council stipulates that the State Administration of Taxation shall prescribe the minimum taxable prices of different types of taxable vehicles with reference to the average market transaction prices of taxable vehicles. If a taxpayer purchases a taxable vehicle for his own use or imports a taxable vehicle for his own use and declares that its taxable price is lower than the minimum taxable price of the taxable vehicle of the same type without any justifiable reason, he shall levy and collect the vehicle acquisition tax according to the minimum taxable price. Acquisition Tax. Article 11 of the Administrative Measures for the Collection of Vehicle Acquisition Tax of the State Administration of Taxation stipulates that the minimum taxable price refers to the taxable price of vehicle acquisition tax approved by the State Administration of Taxation based on the price information of the vehicle provided by the motor vehicle manufacturing enterprise or distributor, with reference to the average market price, and that the Administrative Measures for the Minimum Taxable Price of Vehicle Acquisition Tax shall be formulated separately by the State Administration of Taxation. According to the above regulations, it can be seen that the State Administration of Taxation has the right to formulate the minimum taxable price of vehicle purchase tax with reference to the average market transaction price and other factors at different periods of time. Moreover, the above regulations belong to the scope of administrative regulations, and the Measures for the Administration of Vehicle Purchase Tax Collection belong to administrative regulations. Therefore, the tax authorities are legally authorized to approve the minimum taxable price of vehicle purchase tax by the regulations and rules.

(Ⅲ) Case Commentary

According to article 53 of the administrative litigation law of the People's Republic of China, citizens, legal persons or other organizations believe that the administrative act based on the state council departments and local people's government and its departments to formulate normative documents is not lawful, in the administrative act of the lawsuit, you can request for a review of the normative documents. Therefore, in this case, when Chen filed an administrative reconsideration against the specific taxing act of the tax authorities, he had the right to request an incidental review of the Circular of the State Administration of Taxation on the Approval of the Minimum Taxable Price of the 67th Edition of the Vehicle Acquisition Tax (Tax General Letter [2018] No. 46).

According to Article 8 of the Legislative Law, only laws can be enacted on the following matters: ...... (f) the basic system of taxation, such as the establishment of tax types, the determination of tax rates and the administration of tax collection. Therefore, the content related to the "basic tax administration system" should be set by law. In this case, based on the authorization of the Measures for the Administration of Vehicle Acquisition Tax Collection, the State Council has the right to prescribe the minimum taxable price of different types of taxable vehicles with reference to the average market transaction price of the taxable vehicles, and therefore it is not in conflict with the provisions of laws, rules and regulations and other superior laws.

In this case, Chen filed a lawfulness review of normative documents to the court, is fully defended to maintain the legitimate rights and interests of the powerful embodiment. In practice, through the administrative case of normative documents review system, can help the administrative relative to review the administrative organ to make specific administrative act of the legality of administrative disputes.

Ⅲ. normative documents incidental review points of attention

(Ⅰ) normative documents should be reviewed with the administrative act under appeal together

According to the provisions of the law and relevant judicial interpretations, the court on the review of normative documents should comply with the "incidental" principle. First of all, the review object of incidental. That is, only directly as the basis of the administrative act of the normative documents can become the court's review object; Second: the review mode of incidental. That is, only in the specific administrative act of legality review incidental to the review of normative documents; Finally, the review results of incidental. That is, the court on the normative documents is to confirm the direct basis of the specific administrative act in order to confirm the legitimacy of the administrative act. After examination that the normative documents are lawful, should be used as the basis for determining the legality of administrative acts, after examination that the normative documents are not lawful, the treatment is not used as the basis for determining the legality of administrative acts, and to the normative documents to the development of the authorities to put forward processing recommendations, and do not make a separate judgment on the legality of the normative documents.

In 2017, the Supreme People's Court made a ruling on administrative reconsideration between Li and Yunnan Provincial Bureau of Land and Resources ((2017) Supreme Law Xing Shen 6457), also confirms this rule of adjudication, and the judgment clearly points out that: the Circular in question belongs to the normative documents, and it can only be reviewed collaterally to the document when prosecuting a specific administrative act, but not individually, but the applicant of the reexamination did not prosecute a specific administrative act .

(Ⅱ) the scope of normative documents review is strictly defined in the regulations below the normative documents

Our country practice administration in accordance with the law, the basic policy of governing in accordance with the law, administrative organs as the management of public order, safeguard the interests of citizens of the law enforcement body, based on the laws and regulations authorized to formulate a wide range of complex provisions, documents, regulations below the normative documents can not be listed, but through the search referee network, we will find that, in practice, there is often a misunderstanding that needs to be drawn to the attention of the reader, that is, the administrative regulations, departmental regulations of the State Council, and local government regulations do not belong to the scope of normative documents subject to incidental review in administrative litigation.

In 2018, the Supreme People's Court made Zhang Mouxin, Liaoning Provincial People's Government Re-trial Review and Trial Supervision Ruling ((2018) Supreme Court Xing Shen 1004), which clearly states that citizens, legal persons or other organizations believe that the normative documents formulated by departments of the State Council and local people's governments and their departments on which the administrative act is based are unlawful, and that, when filing a lawsuit against the administrative act, they can request a concurrent review of the The normative documents for review, the normative documents stipulated in the preceding paragraph does not include regulations. This case was appealed to reject the administrative reconsideration application decision based on the "petition regulations" and "the administrative reconsideration law of the people's republic of china implementation regulations" are administrative regulations, do not belong to the court may be based on the application of the parties to review the scope of the normative documents incidental.

(Ⅲ) Normative documents should be submitted for review within the legal time limit

Because the normative documents review in nature belongs to a kind of incidental request, on the one hand, is limited to the normative documents on which the administrative act under appeal is based, on the other hand, should be in the administrative litigation on the filing of a request for incidental review, even if the administrative relative has a justifiable reason, should be put forward before the end of the court investigation of the first instance.

In 2017, the Supreme People's Court made a ruling on administrative expropriation by Fan Mou and a township government ((2017) Supreme Court Xing Shen No. 2289), which also clearly pointed out that the applicant for reexamination only filed a request for incidental review at the appeal stage, which did not conform to the provisions of the Administrative Litigation Law and its Judicial Explanations on "the review of normative documents shall be made at the time of filing the administrative litigation" and "the review of normative documents shall be made at the time of filing the administrative litigation". The provisions of the Administrative Litigation Law and its judicial interpretations of the "normative documents should be reviewed at the time of administrative litigation", the court of second instance did not review is not improper; in the application for retrial stage of the request for incidental review, even more can not be supported.

Ⅳ. Summary

Administrative case normative review system for further standardize the administrative trial work of the court, strengthen the administrative power of constraints and supervision, fully protect the legitimate rights and interests of the administrative relative are of great significance. Our country in practicing administration in accordance with the law, ruling in accordance with the law at the same time, there are indeed some normative documents, low level of legislation, part of the normative documents between the existence of contradictions and conflicts, administrative organs in the specific handling of the case should be strictly follow the "subordinate law shall not conflict with the supreme law", "the law does not apply retroactively "and other legal principles, so that its administrative behavior and its basis is legal. The administrative relative should also fully exercise his procedural and substantive rights to judicial remedies, and actively plead his case in order to safeguard his rights and interests.