Judicial review of the America (Judicial Review), refers to the USA court administration with the other's request, the legitimacy and rationality review the corresponding administrative behavior, revoke the illegal administrative acts, as against the illegal administrative acts of the opposite party to provide relief system. (here refers only to judicial review judicial review of administrative acts, not including the legal review of constitutionality.)

Features, judicial review

1The main judicial review is America federal and state courts: including the Federal District Court, the federal court of appeal, Supreme Court and lower court, the state court of appeals and the Supreme court. The courts at all levels were entitled to enjoy the right of review of relevant laws. Its jurisdiction no unified law regulation, and respectively by special laws or case to determine.

2Judicial review. The object is the administrative behavior: the legal provisions can be subject to judicial review act, by administrative organs ultimately determine the parties in court without other full relief act. Not all administrative behavior, is not limited to the legal provisions by examining the behavior of.

3. the scope of judicial review of the applicant is widely: including administrative acts by the aggrieved person, subject to administrative behavior detrimental effects on people.

4The judicial review procedures. Generally applicable rules of civil procedureUSA: Federal Administrative Procedure Law and judicial review were not specialized administrative procedure code. These laws is only for some special problems and procedures of judicial review proceedings jurisdiction provisions. Any law that no special provisions, apply the ordinary rules of civil procedure.

Two, the scope of judicial review

Judicial review of the scope of accepting cases, refers to the scope of administrative actions by the review. The jurisdiction of administrative cases range. According to the America constitution, America federal court jurisdiction is limited to the jurisdiction of constitution3Enumerated cases (Cases(and controversial)Controversies). But the constitution article3Does not occur between a clear list of civil and administrative cases or administrative dispute. But the common law and equity law cases based on federal court jurisdiction second enumerated in the Constitution and laws of the United States, the case based on may include administrative cases and administrative dispute.

In the1946Years ago, because of "sovereign immunity" principle, American federal court accepts the scope of administrative cases is very small.1946Year Congress passed "the Federal Tort Claims Act", to limit the doctrine of sovereign immunity, the provisions for the government or government officials of the United States tort, can be used as the defendant, the administrative relative party may request the court to review and judgment. But the law also stipulates that the many exceptions, are to some extent has retained sovereignty principle. To1978Years, Congress to amend the "administrative procedure law" provisions of the federal court, relative to the administrative organ or its officials accused in an official capacity behavior, not to the United States as the defendant as grounds for inadmissibility or refused to grant relief, thereby expanding the scope of judicial review.

(a) American judicial review scope

1In accordance with administrative organization law reviewMethod: establish the corresponding administrative organs for the agency's action is usually subject to judicial review, review, qualification of the plaintiff, the jurisdiction of the court, the review form to detail. Such as:1914Years of "Federal Trade Committee Organization Law" stipulates: the Federal Trade Commission if stop violations, command, or personal partner companies to stop some competition, some action or activity, this individual, partnership or a company can then command after service60Days, to America federal appeals court instituted review this ruling proceedings, request to revoke the order; appeals court accepted the lawsuit should be the implementation of the disputed area competition, behavior, activities of the federal court of appeal, or is this person, partnership, corporation residence or place of business of the federal court of appeal.

2The implementation of the law. In accordance with the specific management review:Legal, administrative organs Congress promulgated specific management according to the authorization to develop regulations, regulations on judicial review.Such asOn the issue: some subsidies or allowances in laws and regulations, the general provisions of administrative organs in the implementation of subsidies, subsidies or administrative review on the controversial ruling; in the laws and regulations about tariffs or animal and plant quarantine, the general provisions of administrative organs impose tariffs act or quarantine behavior as well as the relevant disputes the review decision.

3According to the general jurisdiction. Law or special jurisdiction law review:In the corresponding tissues or specialized management laws and regulations is not specifically provided for judicial review, opposite party according to general law -- federal judicial procedure for review of administrative behavior. According to the special jurisdiction to review or laws, such as civil rights law to file a civil suit against the state administrative organs.

4In enforcement procedure implementation review:Executive orders, general self published binding, opposite party refuses to accept the administrative order, can be in the specified period of time (usually60Day) sought judicial review. More than the prescribed time limit, the relative party neither to court nor implement, the administrative organ may enforce or administrative punishment.

5According to the type of dissent and counterclaim. Implementation of the reviewFor the government: Party filed criminal charges or civil enforcement act, even in the absence of any special laws according to the request of judicial relief, usually to illegal government action and the objection and the examination of the request for.Such as: if the government to breach of administrative decision or government regulations and criminal prosecution or civil enforcement, opposite party can take administrative management decisions or government regulations and illegal as a defense for judicial review.

6In common law writ implementation review:The common law writ arraignment, including that ban, warrant, habeas corpus, tracking down the order, cease and desist order etc.. Some forms of generally less suitable, but still retained. In the absence of law according to the time, still can be used as request and implementation of judicial review according to the.

7Direct constitutional according to the implementation of the review:Relative to administrative behavior, if neither the law basis, and no common law writs quoted, and can be used directly to the administrative acts violate the constitutional right of claim of judicial review. The most widely quoted is the constitutional article5Amendment and the14Amendment "due process of law" provisions.

(two) the relevant laws and regulations to exclude administrative review

America "provisions of Federal Administrative Procedure Act" does not apply to: judicial review of administrative legal provisions do not judicial review; administrative legal authorized administrative discretion.

1The law excludes review:(1The law explicitly excluded (review)2The law that excluded (review)3The law does not make any provisions) for review. The first case, the law of the administrative decision is often "final decision" "final decision" and other words excluding review. Second cases and third cases, is the court of law is a kind of understanding and interpretation. From the1946The judicial practice promulgated years "Federal Administrative Procedure Act" after watching, court on judicial review is taken gradually relaxed attitude, reduce the exclusion of review, the interpretation of law is taken to expand the review narrowed limit position, even if the law has not stipulated the judicial review, the court also don't think are precluded from reviewing. The court often take the law "final" "final decision" is interpreted as "the ending of the administrative procedure, but not the whole or partial cancellation of judicial review.

2Discretion to exclude review(1To determine the behavior of future policy). For all areas of the management policy, law is difficult to clearly defined, but for the administrative organs according to the specific situation, identify specific conditions. (2) relating to defense and foreign administrative decisions. Foreign and defence problems are political in nature, rather than judicial. (3) decided to pure internal management administrative organs. As the court will usually discretionary areas, not review. (4The supervisory management behavior) made based on intuition and hunches. Court held that the supervision of the management behavior of the administrative organ based on the intuitions and hunches, neither the fact judgment, and non inference of legal principles, should not be subject to judicial review.

Of course, the discretionary exclusion review is not absolute, relative and sometimes can still to abuse of discretion as the basis, or in violation of constitutional rights as the basis, sought judicial review. So, in USA administrative actions should be subject to judicial review principle, exclude the review is the exception.

Three, the judicial review of the party

USA "Federal Administrative Procedure Act" provisions, that the administrative acts infringe upon their lawful rights of the people, or by the administrative behavior of adverse effects or damage to people, have the right to apply for judicial review.

1The plaintiff's qualification

For the plaintiff's qualification, although the "Regulations of the principle of Federal Administrative Procedure Act", but the court in the judicial practice, it has a narrow width, each time the applicable standard is not completely consistent. The plaintiff qualification standards for judicial review of the experiences from narrow to wide variation.

"Before the Federal Administrative Procedure Act", take "legal harm standard", that the illegal behavior of the administrative organ infringes and damage to his personal is protected by the constitution, the law or common law person or economic rights or interests, includes six elements: (1Damage (;)2) damage is the legal protection of rights and interests (3) is a personal rights damage (4) is the administrative behavior caused damage (5Administrative acts are illegal) or ultra vires (6) damage the interests of is the person or economically.

"The Federal Administrative Procedure Law" will "damage" to "damage" and "adverse effects", namely "legal right damage and adverse effects of standard". Later the Supreme Court precedent and the standard was revised to "double damage criterion ("1Administrative behavior) the examination of the request for the economic or other injury in fact; this kind of damage is related to the legal protection of the interests of the damage. The court finally development and determine the "adverse effect" which is the de facto standard, each other as long as its interests are adverse effects of administrative behavior, he has the qualifications of the plaintiff, regardless of whether the interests of specific provisions of the law, no matter whether the interest is the personal interests, economic interests or other interests. The plaintiff qualification of broader.

2The defendant qualification

The defendant qualification, is the administrative organ or the administrative organ of administrative act is the defendant accused. In practice, the qualification of the plaintiff is difficult. Because the federal government institutions are located in Washington, and decisions and regulations applicable to the whole country, opposite party refuses to accept the decision or regulations, the past can only go to Washington D.C. court, no matter how far the relative party. This gives opposite party caused great inconvenience. After the federal court in the judicial practice in the field of the state permission to live in lower level officials, federal administrative agencies in the field as a defendant, filed a judicial review. The law also prescribes the jurisdiction of the court: (LThe District Court (residence)2) was accused of administrative act to the District Court (3) associated with any fixed area court estate is located and the alleged (administrative behavior4) if the administrative act is accused of not involving immovable property, can be home court plaintiff.

If the plaintiff to several different court, jurisdiction by the court case first. The administrative organ shall provide administrative record material to the first case of the court, the court shall receive the other lawsuit material to the first case of the court.

(author: Liu Jie, doctor of law, Beijing Dacheng Law Firm Shanghai branch lawyer, arbitrator of Shanghai Arbitration Commission)