중국에서 규장(规章)의 법적 성격에 관한 고찰- 중국 행정소송법 제63조의 해석을 실마리로 -

Abstract

This thesis is a study aimed at clarifying the concept and legal character of GuiZhang in China. In China, there are so-called legal norms in the form of GuiZhang. These GuiZhang are largely divided into sector GuiZhang and local government GuiZhang. Article 63 of the Administrative Litigation Law of the People’s Republic of China stipulates that when the people’s courts try administrative cases, they shall use the law as a basis, but refer to the GuiZhang. If so, is GuiZhang a law? Or is it a rule in the the administrative court? The thesis examines the history, concept, and legislative status of GuiZhang, introduces and reviews the provisions of Article 63 of the Administrative Litigation Act and representative precedents related thereto, and draws the following conclusions. First, in China, regulations are a form of law or legal norms. According to the concept of so-called substantive law, which is a general and abstract legal norm that regulates the rights and duties of the people, GuiZhangs – at least the contents of GuiZhangs that restrict people’s rights in general or newly stipulate administrative permits or administrative punishments – are law. to be included in the scope of the law. Second, GuiZhang is recognized as the legal source of Chiese administrative law. In other words, in the hearing of administrative litigation, the GuiZhang can be cited as the basis for a trial. However, the premise is that the legality and validity of the GuiZhang must be examined by the judicial authority. In China, people’s courts can selectively decide whether or not to quote the GuiZhangs. In that sense, the Administrative Litigation Law of China is a court where judicial authorities can choose whether to accept or not.