通過判例創制規則：以中國司法審查標準為視角

Abstract

Judicial review standard, as the core issue of administrative litigation, refers to all kinds of principles that the people's court follows when reviewing and judging the prosecuted administrative act and making a judgment. Chinese courts are constantly creating rules in the field of judicial review, that is, "court-made law". Besides, in the process of creating standard rules for judicial review in China, a standard ternary system of "legality standard", "rationality standard", and "procedural justice standard" has been gradually formed.

This proposition is based on a realistic question: Can judges (courts) create rules under the framework of the judicial review system in China? "Developing the law through judgments." More than twenty years ago, the legal community had in-depth discussions on the "Tian Yong case" and others, enabling the judges to realize the judgment's value further. "How the courts develop administrative law." Scholars' discussion of "judge-made law" was refreshing more than a decade ago. In contrast, the extreme experience of prohibiting "judge-made law", such as the "Jin Xueying case", the "seed case" and so on, have had a profound impact on the courts. However, with the advancement of the rule of law, the phenomenon that China's judicial review system keeps pace with the world has become increasingly prominent. From a worldwide perspective, the courts in most countries have the right to create judicial rules in different forms and scopes. The functional positioning of judicial review calls for the creation of rules in particular, and China is no exception. Specifically, in terms of judicial review standards, are Chinese courts creating rules? How to create regulations? What is the law of regulation creation? Taking typical cases of judicial review standards and guiding cases of the Supreme People's Court as samples (Only 14 forms are attached that involve 11,977 cases, of which 773 cases are listed with case numbers), this paper attempts to answer these questions by summarizing the practice of creating standard rules for judicial review in China.

The political and legal model is the political context to explore China's judicial review standards. Under the framework of the political and legal model, first, the "legality standard" represents legislative structure and judicial interpretation. From the legislative choice and structure of Article 5, Administrative Litigation Law (1989) to judicial interpretations and judicial precedents, the review standard system with "factual evidence", "application of law", and "exceeding authority" as the main situations stands out. Circumstances of "confirmation of illegality", "administrative omissions", and "administrative normative documents collateral review" should also be included in the "legality review standard" system. This article focuses on "application of law", "confirmation of illegality", and "incidental review". Second, the "rationality standard" reflects that the theoretical innovation is in line with reality. The "rationality standard" gradually form an independent judicial review standard system driven by academic discussion and theoretical innovation. Theoretical innovation is consistent with judicial reality, starting with "abuse of power" and "obvious unfairness", and "obviously improper" as the benchmark, the "rationality judicial review standard" system is established. Third, the "procedural fairness standard" embodies the traditional breakthrough and boundary expansion. Strictly speaking, the "violation of legal procedures" in Article 54, Administrative Litigation Law (1989) belong to the category of "legality standard". However, judicial practice not only uses this as a legal basis to achieve a breakthrough in the political and legal tradition of "emphasizing entities over procedures", and further using "due process" as a weapon to expand the boundaries of procedural fair judicial review standards, forming a integrated "legal produce + due produce" system. Without the legal provisions of "Statutory Procedure" in Administrative Litigation Law (1989), there would be no legal basis for Chinese procedural justice. Without the exploration and application of "due process" in judicial practice, it would be difficult to form a complete "Procedural fairness standard of judicial review" in China.

In addition, the transplantation of extraterritorial rules is a rare weapon for judges to "fill vacancies in legal provisions", which has a profound impact on the construction of China's judicial review standard system. "Reliance protection", "proportionality principle", and "procedural justice" represent a model of transplantation of extraterritorial rules in the fields of "legality standard", "rationality standard" and "procedural fairness standard".

The creation for standard rules of judicial review in China has taken a Chinese path of "court-made law", presenting established features and development trends such as the dynamism of judicial review, the phenomenon of judicial review transplantation and the standardization of the judicial review case system. Judicial review activism is embodied in the judicial construction of the "three-element standard" system. The judicial application of extraterritorial rules, such as procedural justice, trust protection and proportionality principle, provides the most typical examples for the judicial review transplant doctrine. The standardization of the judicial review case system is the proper way to realize the modernization of the judicial governance system and governance capacity. The creation of judicial rules in China has always taken judicial interpretation as the main carrier. However, Article 104, Legislation Law (2015) abruptly closes a window for "legislative judicial interpretation". Therefore, the method of guiding case system should be opened to highlight the value of its legality, legitimacy, authority, and inheritance. From the creation of judicial interpretation rules to the creation of guiding case rules as the principal part, strengthening the function of creating judicial review standard rules, and taking the lead in the trial of the judicial precedent system in the field of judicial review, which in turn drives the establishment of the Chinese precedent system as a whole. This is the best path for China's litigation system to move towards judicial structuralism.

The theoretical contribution of this paper is to fill the missing items in the study of the creation for standard rules of judicial review in Chinese courts, to refine the laws of the creation for this standard rules, and to summarize the local characteristics of the creation for this standard rules through comparative studies. The study found that Chinese courts have been constantly creating rules in the field of judicial review, i.e., "court-made law"; the pattern of "court-made law" is to resort to collectivism in rule creation, with judicial interpretation as the main vehicle in the early stage, and guiding cases supplemented by "bulletins" in the later stage as the main form. The creation of rules in typical cases and high-law cases is generally manifested in two types: "refinement and enhancement of statutory laws and judicial interpretations" and "breakthrough of the existing statutory law and judicial interpretation framework", both of which should be considered as practical models for the creation of standard rules of judicial review under the current Chinese judicial system.

Date of Award	13 May 2022
Original language	Chinese (Traditional)
Awarding Institution	City University of Hong Kong
Supervisor	Feng LIN (Supervisor)