浙江社会科学

《行政诉讼法》赋予人民法院在审理行政案件时有参照规章的司法审查权。最高人民法院第5号指导案例的裁判要点中"不予适用",标志着参照规章中的"个案拒绝适用说"转向"普遍拒绝适用说",即法院有权间接宣布行政规章无效,或者说,第5号指导案例扩大了法院在参照规章中的审查权。在由《立法法》确立的法律效力等级体系中,"不予适用"的适用需要以判断上下位之间是否"相抵触"为前提。判断"相抵触"的标准是:(1)在权利与义务关系中,下位法限缩、取消上位法已经确认的权利或者扩大、增加上位法没有设置的义务的;(2)在职权和职责关系中,下位法扩大、增加上位法没有授予的职权或者限缩、取消上位法已经设置的职责的。

"Administrative Litigation Law" endows people's courts with judicial review of consulting rules when hearing administrative cases. The "refusal to apply rules" in No. 5 guiding case is regarded as the transformation from the doctrine of individual refusal to apply rules to that of universal refusal. That is to say, courts have been authorized to declare rules void. In other words, the case expended the judicial review. According to the hierarchy of legal force established by "Legislation Law", courts should determine first whether the law of lower level contradicts the law of higher level before refusing to apply rules. The standards to determine contradiction are as follows. In the relationship between rights and obligations, contradiction occurs when rights laid down in the law of higher level are restricted or deprived by the law of lower level, and when obligations laid down in the law of higher level are expanded or added by the law of lower level. In the relationship between powers and duties, contradiction occurs when powers laid down in the law of higher level are expanded or added by the law of lower level, and when duties laid down in the law of higher level are exempted by the law of lower level.