The Normative Exposition Of "Abuse Of Power" In Administrative Law

"Abuse of power" is one of the standards that can be revoked in the Administrative Procedure Law and Administrative Reconsideration Law of China,and the main viewpoints of the academic community about its connotation are the violation of the statutory purpose statement,the manifest failure,the fairness theory,the comprehensive theory and the enumeration theory.There are still many problems in the application of “abuse of authority” in judicial practice,such as low application rate in judicial adjudication,and mixed use with “obviously inappropriate” and “exceeding authority” standards.The reasons for the problems include the inadequacy of the legal provisions,the lack of general knowledge in the academic circles,the misunderstanding of the abuse of power understood by the people and the abuse of power in the administrative law.Therefore,it is necessary to clarify the connotation of “abuse of power”.There is disagreement in academic understanding of the abuse of power,such as whether the abuse of power only occurs in the field of discretion,whether it requires the administrative agency to have an improper purpose or motivation,whether it can only constitute subjective misconduct to constitute abuse of power,and whether inaction can be deemed abuse.By analyzing the specific circumstances of the typical cases and the reasons for the judges’ judgment,it is concluded that the abuse of power does not need to be limited to discretionary fields,and does not require “illegal intentions”.Subjective faults and negligence may all constitute abuse of authority.Inaction may also be identified as Abuse of power.After the classification of “abuse”,it further explores the commonality of “abuse” behavior,summarizes its core characteristics,and conceives the “obligation theory”.The content of “obligation” is that the meaning of abuse of power in administrative law means that when an administrative body performs its duties,due to the requirements of legal regulations or administrative functions or the specific circumstances of life common sense or administrative processes,the obligation to transfer appropriate administrative actions will be fulfilled.When it comes to the administrative entity,the administrative entity has not fully fulfilled this obligation,thus undermining the legitimate rights and interests of the person opposing the act,failing the expectation that the normal thinking would hold,and detracting from the authority and credibility of the administrative organization.This is a standard higher than the legal obligations.Finally,designing an application model corresponding to the “obligation theory” makes it easy to distinguish “abuse of authority” from “obviously inappropriate” and “exceeding authority” in judicial practice.