Research On Judicial Review Of Obviously Improper Administrative Act

Articles 70 and 77 of my country’s new Administrative Litigation Law in 2014 added a“obvious inappropriateness” as a review basis for revoking or changing administrative acts,but whether it is the Administrative Litigation Law itself or other Normative legal documents have not provided a specific interpretation of the concept of "obvious inappropriateness",resulting in unclear connotation and denotative boundaries.On the other hand,judging from the nature of the obvious administrative misconduct,the views of scholars in academia are also contending with one hundred schools of thought.Some scholars believe that "obvious inappropriateness",like "abuse of power" and "obvious injustice",has exceeded the limit of the rationality of administrative discretion,and is regarded as an illegal act in nature;Administrative actions do not constitute illegal acts,but there are problems of rationality.After comprehensive analysis,the author believes that "obvious inappropriate" is a situation that is legal in form and illegal in substance,and "obvious inappropriate" is only approaching the boundary of illegality,and is at the critical point between legality and illegality,as long as it does not exceed the threshold of "legal".It means that the administrative subject has not violated the clear provisions of the law,and it is still a legal but possibly obviously unreasonable administrative act made within the scope of legal administrative discretion.In view of the needs of the administrative rule of law,the administrative power with the characteristic of expansion must be regulated in order to safeguard the legitimate rights and interests of the administrative counterpart and ensure the credibility of the government.Therefore,it is urgent to strengthen the restriction and supervision of the administrative power.Judicial review,as an external supervision method,can effectively improve the weak self-supervision of administrative subjects.However,due to the ambiguity of the legislative concept of "apparently improper" and the differences in the definition of its nature,the courts have problems such as inconsistent standards and inconsistent application methods when applying the review basis of "apparently improper" in judicial practice.The courts are completely free to choose Different review standards and application methods,and relying on their own professional knowledge accumulation and practical experience to judge whether the administrative action made by the administrative subject constitutes "obvious inappropriateness".” phenomenon,which hinders the maximum effect of judicial relief,and is not conducive to accelerating the process of promoting the construction of the rule of law in my country.Therefore,in order to solve the above problems,it is necessary to clarify the specific meaning of obviously improper administrative behavior,regulate the scope of application of the review basis of "obviously improper",establish a unified judicial review standard,and continuously improve the administrative case guidance system.