On Judicial Review Of Abuse Of Administrative Discretion

The control on abuse of administrative discretion is a core research topic in the field of administrative law. The most crucial and also the basic cause of abuse of administrative discretion in China has been a weakness on judicial review during a long period, less clear principles and criterions on judicial review especially. In China judicial review of administrative discretion should be implemented according to the principle of"relatively legitimate and reasonable."The major criterions of judicial review are: whether the purposes of administrative act are illegitimate (or improper); whether it obviously violates legitimate expectation; whether it is obviously disproportional; whether it violates the legal administrative precedents; whether it is obviously illegitimate on the discretion procedure; whether it is obviously a fettering discretion and so on. The whole essay has five chapters as the following words show.Chapter I: The current situation and the causes of abuse of administrative discretion. The implementation of administrative discretion essentially requires reasonableness, justice, properness and rationality. The violation on this essential requirement is abuse of administrative discretion. Abuse of Administrative discretion means that administrative organ, when performing its administrative management, uses powers of administrative discretion bestowed by the law in a obviously improper, unreasonable way, or uses powers abnormally. From the current situation of abuse of administrative discretion in China we find that abuse of administrative discretion exists in the making of administrative policies (administrative rulemaking) and the conducting of specific administrative act. In the practice of administrative law enforcement abuse of administrative discretion can be mainly seen in the fields of administrative permission and licensing, taking compulsory administrative measures, disclosure of government information, administrative award and so on. The causes of abuse of administrative discretion are of complex, among which a weak judicial review of such abuse has been the most crucial and the basic one. In particular the imperfect judicial review system is mainly reflected unclearness on the principles and criterions of judicial review. Realistically the case is that laws and regulations on judicial review of abuse of administrative discretion are made in an extremely abstract and generalized way, thus they are rarely operational. Such result is due to the guiding thoughts of extensive legislation and the misunderstanding known as"theory of dichotomy"on the basic principles of administrative law.Chapter II: The necessity and feasibility of judicial review of abuse of administrative discretion. On the current starting stage of Chinese society of rule of law, judicial review is the basic channel of control. First, judicial review of abuse of administrative discretion done through the courts has its general legitimacy. In China judicial review has the constitutional significance of human right insurance and the guarantee of a government that runs by rule of law. Second, there is a practical necessity for judicial review of abuse of administrative discretion in China. The reason of this point lies in that other channels of control have shortcomings and deficiencies, therefore judicial review is the best systematical design for the control of abuse of administrative discretion and for the realization of justice and rule of law. Moreover, judicial review is an effective mean for administrative organs and administrative personnel to implement administration according to the law and it is also a best witness of the realization of the actionableness of the law. Second, judicial review of abuse of administrative discretion in China has its feasibility now. During judicial practice, the courts have a tendency to use particular judicial review criterions to perform judicial review of abuse of administrative discretion, some typical judge cases that aroused wide academic discussions appeared, basic experiences on judicial review have been gained as well. During the lasting judicial reform, the independence of judicial powers has been further enhanced, judicial material resources further guaranteed and the judicial wisdom and professional qualification of the judges widely leveled. Judicial review of abuse of administrative discretion in China will step on. The development of theories of administrative law, the improvement of administrative execution and judicial conditions allows judicial review of abuse of administrative discretion in China has its feasibility. In particular, the founding of characteristic cases'guiding system and the improvement of the assessor system in handling administrative cases has created great benefits for judicial review of abuse of administrative discretion in China.Chapter III: A comparative investigation on foreign countries and Taiwan of China. In modern countries, especially in U.K. and the U.S.A., it is compulsory that administrative discretion accepts judicial review. Using various forms of judicial reviews to control abuse of administrative discretion has hundreds of years'history in the western countries. Till now these countries have formed basic principles and criterions on judicial review and also a relatively mature system of technique and measures on judicial review. Though the phrase"judicial review"has different meanings, western countries and Taiwan of China put the control and review of abuse of administrative discretion into the trajectory of judicial review. Courts (including common courts and administrative courts) play constitutional roles on different levels with the aspect of judicial intervention of administrative powers. Although in different countries theoretical bases of the judicial review differ from one another, both western countries and Taiwan of China found their reasonable judicial review principles with respective focus, various types of theories and thoughts support their different practice of judicial review as well. Though the reasons of judicial review have different expressions, administrative actions that lead to abuse of administrative powers are all defined either as the violation of rule of law, or as illegitimate, which are annulled by judgment of the courts in terms of annulment, or denied in term of violation of law, or with judicial announcement of invalidity. The principles and criterions of judicial review are of great importance, for they are a central reflection on the intensity of judicial review. In the most influential western countries and Taiwan of China the principles and criterions of judicial review bear certain external embodiments and sources; Laws, regulations and judge cases complement each other, thus form a lasting joining-forces and an important carrier of the principles and criterions of judicial review. On judicial review of abuse of administrative discretion, our country is deeply influenced by the continental legal system. At the same time, however, the experiences of administrative laws of the case law legal system deserve our reasonable consideration, researching, using their principles and rules of case law as reference.Chapter IV: The principle of judicial review of abuse of administrative discretion in China. Being legitimate and reasonable is the deeper requirement of legality, therefore judicial review of abuse of administrative discretion done by the courts, to some extent, is a substantial judicial review based on the principle of legitimacy and reasonableness. Being legitimate and reasonable in term of the administrative laws is a concept given multi- aspect and multi-layered implication or meaning. The concept of being legitimate and reasonable in particular means that the administrative action or inaction should conform to the natural law, the moral law, the cultural custom, the social experience; it should also answer to the spirit of rule of law or legitimacy, and sense of fairness, equality and justice. In China judicial review done by the courts on administrative discretion should abide by the principle of"being relatively legitimate and reasonable,"which stands for a relatively legitimate and reasonable administrative discretion that does not result to abuse of powers. On the contrary, an administrative act, which is obviously illegitimate and unreasonable, should be deemed to be abuse of power. The principle of"being relatively legitimate and reasonable"mentions"reasonableness"and"legitimacy"in parallel, which forms an integrative concept externally and an inter-complementary relation internally, therefore it can better express the essential full requirements of the implementation of administrative discretion from one aspect, thus such principle is scientific.Chapter V: The criterions of judicial review of abuse of administrative discretion in China. The criterions of judicial review of abuse of administrative discretion have a strong practical feature, they will be further complemented and improved with the ongoing social development. Using the reference of the experiences on judicial review of those influential western countries and Taiwan of China, the criterions of judicial review of abuse of administrative discretion mainly lie in: whether the purposes are illegitimate; whether the consideration of factors is illegitimate; whether it obviously violates legitimate expectation; whether it obviously violates the legal administrative precedents; whether it is obviously disproportional; whether it is obviously illegitimate on the discretion procedure and whether it is obviously a fettering discretion. During the revisions on the relative laws in China, the above-mentioned points should be given enough consideration. By doing so, the current situation of the laws and their provisions being too abstract and lack of feasibility can be changed.