Judicial Review Of Abusing Administrative Power

In recent years, with the development of the administrative rule of law,administrative law scholars and practitioners attach great importance to the abuse ofadministrative power in our country. Because abusing administrative power seriouslyhurt the interests of the administrative relative person, it also becomes the focus of thestudy of administrative law issues in many countries. Generally speaking, there arelegislative control, administrative control, judicial control and some other ways tocontrol the abuse of administrative. Every method has its advantage and shortcomings.The legislative control has the advantage of beforehand control, but the legislaturecan’t face with a complex and specialized modern administration. And it can’t predictall possible problems and can’t make specific provisions for the problems.Administrative control is an effective control method in process, which control theabuse of administrative power from the administrative procedures or the internal ofthe administration. However, it must be respected by the judiciary. The judicialcontrol method also has limitation such as hysteresis. Therefore, we can’t simplybelieve that a certain way is more superior. But from the perspective of functionalism,the judicial review is the most effective and most complete control method.Article54of Administrative Procedure Law of the People’s Republic of Chinaclearly defines the standard of judicial review of abusing administrative power. Butthe courts rarely invoke this provision directly. It does not only involve theconvenience for the judge quoting review standards and the inherent value orientation,but also involve the rational thinking of judicial review and pattern. In this paper, theauthor describes the status of the judicial review of abusing administrative power byempirical research and analyzing cases. At last, the author gets the conclusion of thecontrol system of monism.First, define the abuse of administrative power. Sum up the meaning of abusingadministrative power, including the view of domestic scholars and the view of foreignscholars. According to the analysis, the author finds the focus of controversy mainlylies in two aspects: one is that abusing administrative power whether can occur outside the discretionary power of the jurisdictions of the administrative power; theother is whether abusing administrative power is limited to the intent of theperpetrator.Secondly, discuss the characteristic and judgment standard of abusingadministrative power. The characteristic of abusing administrative power has alwaysbeen the focus of controversy in the academic community. And it can be summarizedas Illegal doctrine and improper doctrine. The complexity of fuzzy legislation andpractice lead to that the relationship between abusing power and exceed power andunfair. The author has defined the relationship between them and then sort out thecriteria on the abuse of administrative power, mainly including substantive standardsand procedural standards. Substantive standards: inappropriate purpose; consideringirrelevant factors or without considering relevant factors; obviously unfair. Proceduralstandards: unreasonable deadlines and delays; unreasonable manner.Thirdly, introduce the current situation the judicial review of abusingadministrative power. In this part, I mainly use the method of analyzing cases. Thesecases are from "The Communiqué of the Supreme People’s Court of the People’sRepublic of China"”Chinese Trial Case Handbook" and "Selected Cases of People’sCourt". By analyzing the cases, I find that the judge rarely applied “abusing power”to revoke the specific administrative acts. I hope you can feel the difficulties that thejudges encountered in reality more intuitively.Finally, discuss the path selection of the judicial review of abusingadministrative power. Here I propose three ideas. They are: unifying judicial controlsystem of abusing administrative power (centralized theory of system); buildingjudicial precedent system; controlling the way of abusing administrative power.