The "Obviously Improperness Of Administrative Act" In Administrative Procedure

Administrative litigation plays an important role in guaranteeing rights.In judicial practice,it is often necessary for judges to carry out judicial review of administrative acts and solve administrative disputes according to the standards of judicial review in different forms of judgments.China’s Administrative Procedure Law has established the principle of legality review.After the revision of the law in 2014,another standard of legality review for discretionary administrative acts has been added-"obviously improperness administrative acts"(in the following referred as "obviously improperness").As a new standard of judicial review,"obviously improperness" is powerful to supervise administrative discretion.It breaks through the traditional principle of legitimacy review,and brings the substantive illegal discretionary administrative acts,resulted from obvious irrationality,into the legitimacy review,opening a new stage of rationality judicial review.However,since the amendment of the Administrative Procedure Law,there has been no unified understanding on the definition,scope and path of application of "obvious improperness " in the theoretical and practical circles,especially on whether "obvious improperness" is only applicable to discretionary administrative acts,whether it can be applied to both substantive and procedural acts,and how to apply "obvious improperness" correctly.As a result,"obviously improperness" has been exaggerated and used in totally wrong circumstances frequently in judicial practice.In order to make the judge understand and apply "obviously improper” rightly,it is necessary to clarify the positioning of its connotation,the determination of its scope of application,the path of its application,and to understand and compare the differences of its judgment methods.This paper mainly discusses the "obvious improper" from the following five parts: the first part describes the origin of the "obvious improper" as a review standard,through summarizing its development process,laying the foundation for the following definition of its connotation,the scope of application,and the path of application;the second part,through summarizing the current theoretical arguments of "obvious improper" to find the breakthrough point to define its connotation and make the definition clear,especially in the Article 70.The third part is to determine the scope of application of "obviously improper",and to clarify the application disputes of "obviously improper" in discretionary administrative behavior and binding administrative behavior,substantive behavior and procedural behavior,as well as formal illegal behavior and substantive illegal behavior;the fourth part,combinedwith researches on "obviously improper" in foreign countries and the actual situation of China,this paper explores the basic path of the application of "obviously improper" from the perspective of the rule of law through legal principles,involving the principle of proportion,equality and due process;the fifth part analyzes three kinds of judgment methods concerning"obviously improper",namely,the application logic and difference of revoking judgment,changing judgment and confirming illegitimacy in "obviously improper",completely connecting the theory and practice from the review to the trial.