The Determination Of "Obvious Impropriety" In Administrative Litigation

Facing the dilemma of unsatisfactory application of “abuse of power”,the Administrative Procedure Law(2014)added “obviously improper” provisions.As an important tool for examining the legitimacy of administrative discretionary behavior,"obviously improper" involves the core topic of administrative litigation-the relationship between judicial power and administrative power,and the relationship between judicial power and administrative discretion.Under the ever-increasing awareness of rights and claims,how to "get along" between authoritative and neutral judicial power and the ever-extending administrative discretion is a major issue in a modern country under the rule of law.Research on "obviously inappropriate" is the best window to observe this problem.At present,both academically and practically,as an independent review standard,"obviously inappropriate" is facing the dilemma of large differences in views and confusion of application.The main manifestation is that the applicable objects are not clear and the specific standards are complex(what is "inappropriate").)And the three issues of ambiguity in the intensity of the review(what is “obvious”).In the judicial review system of administrative discretion in extraterritorial law,the "narrow" discretion has begun to move closer to the "broad" discretion;in terms of judging methods,the basic requirements of reasonable administration such as the principle of proportionality and the principle of equality have become common points.In addition,although the intensity of review is not consistent,the courts of various countries maintain the spirit of limited review."Obviously inappropriate" is one of the judicial review standards for administrative discretionary behavior.Administrative discretion should be understood as the freedom of choice of administrative agencies within the legal framework.This freedom is not limited to legal effects,but also includes legal interpretation,fact identification,and procedure implementation.However,considering that other review standards in Article 70 of the Administrative Procedure Law have formed relatively stable review targets in practice,in order to take care of the systematization and harmony of review standards,it is still necessary to define "obviously inappropriate" review targets Discretion for legal effects."Improper" behavior revolves around reasonable administration,and its manifestation actually presents an open and diversified state.Currently,it mainly includes violations of the principle of equivalence of excessive punishment,the principle of proportionality,the principle of equality,the principle of trust protection,and the violation of legislative purposes Improper consideration of other circumstances.Regarding the intensity of review,in order to achieve a fair and objective judgment,the court ’ s judgment on “ obvious ” should rely on the“ordinary person standard ”.At the same time,the intensity of the “obviously inappropriate” review is very close to the “major discretionary error” in French administrative law,and is of “medium” intensity.In the future,the court should adhere to the principle of legality review,uphold the "ordinary person standard," and give appropriate respect to the administrative agency,while using the principle of proportionality,equal treatment,and trust protection to examine the legal effects.