Rationality Of Judicial Review Of The Problem

According to the traditional view of point, rationality is an concept that refers towhether a specific administrative act is reasonable, which is different to the concept oflegitimacy. It is refused to the judicial review and confirmed by judicial interpretation. Butthis is contradicted to administrative litigation law, so it is not right. The "rationality" has towmeanings, which are in legal sense and non legal sense. The "rationality in legal sense"refers to according with the principle of law; The "rationality in non legal sense" refers toaccording with other standard such as technology or policy and so on, which belongs toadministrative discretion and the court can not review it. So, the "rationality" in the judicialinterpretation issued by the Supreme Court means "rationality in non legal sense", that isintent to refuse the court to interfere with the affairs belong to administrative discretions.There are two premises to make sure the meaning of "rationality". Firstly, to sure therelationship between "legal principle" and "legitimate". Although the court can not applythe legal principle to the cases directly, it can judge an act to be illegal in the reason of"abuse of power" or "lose justice conspicuously" cording to administrative litigation law. So"according with legal principal" is a necessary condition to legitimate. The second is todistinguish the boundaries of the two sense of rationality, otherwise the court will can notidentify the scope and depth of the intervention in cases. Specifically, in the scope, thecourt can review all of the administrative organ’s acts including administrative discretions.In the depth, the court only can judge a act to be legal or illegal, but it is powerless to judgethe more deep area that only can be judged by other non legal standards. In judicial practiceof China, the court can review the administrative organ’s specific administrative act by thesystem of explaining reason. Although there are many rules in deferent laws that have set thesystem of explaining reason, we need a uniform rule that set the system of explainingreason has binding to all the acts which cause adverse affection to the concerned person.