Study Of The Intensity Of Judicial Review Of Questions Of Fact In Administrative Proceedings

The intensity of judicial review concerns the fundamental and basic issue which is the conflict and harmony between the judicial power and the administrative power in the institution of modern administration litigation and it deals with the degree to which the judicial power' s interposition and intervention into the administration acts that come into the judicial field. It is the issue of fact which connects closely with the intensity of judicial review that reflects the depth to which the judicial power penetrates into the administrative power, that is in administration litigation the judger will give how much respect to the fact conclusion which the administration have made in the administration procedure using the discretional power. The two legal systems differ in the issue of fact. The main Anglo-American legal system countries differentiate the issue of fact from the issue of law, and set the different judicial review standards to the different issues. In the matter of the issue of law, it is believed that the judicature are the experts in the issue of law, they can make their own opinion replace the administration' s ideas, but on the other hand, as far as the issue of fact is concerned, it is thought that the administration are the experts in the issue of fact and consequently the judicature are asked to respect the verdict concluded by the administration in the administrative procedure. On the contrary, the main Continental legal system countries do not differentiate the issue of fact and that of law, they take the same intensity of judicial review towards the two issues. It is worth noticing that in France, the attitude of judicial review over the issue of fact is unique, it take the similar attitude to the issue of fact and law with the continental legal system countries, and also according tothe scope of the administrative discretional power in the issue of fact , the administrative court practice 3 different standards of judicial review. The Administration Proceeding Law in our country does not give legal support for the court to examine the issue of fact, so it makes a mess in judicatory practice as a consequent. Therefore how to set a review standard in our administrative litigation deserves investigating. I think it is important to take different intensity of judicial review to the issue of fact and law and according to the various types of administration litigation, the intensity of the discretional power used by the administration which makes the fact-identification, we should set flexible standards to the issue of fact, the standard of reasonable review, the standard of obvious transgress, the standard of full review. The first standard is mainly used to review the common administration cases; the second one is mostly used to review the cases in which the administration have high discretional power or sophisticated technology and speciality; the last one is principally fit to the cases of non-administration acts and the cases in which the administration have the discretion that shrinked to the zero.