Research On The Standard Of Obviously Unfair Administrative Penalties:Based On Analysis Of The Typical Cases

Since the "Administrative Procedure Law of the People’s Republic of China"(hereinafter referred to as the "Administrative Procedure Law") since the implemented, the definition of obviously unfair became a controversial issue. Article54.1(4) of Administrative Procedure Law provides the right to exercise judicial change in the obviously unfair situation. In the "Interpretations of the Supreme People’s Court on Certain Issues concerning the implementation of<Administrative Procedure Law of the People’s Republic of China>"(hereinafter referred to as "Interpretations") implemented in March2000, there is no clear definition of the obviously unfair situation in the Administrative Procedure Law, but only provides the applicable principles of judicial variation.Based on the preliminary sorting of typical court judge cases in recent years, this paper found courts showed some thought of the proportion principle and equal treatment principle. It can be seen on the carding of academic history, the academic views tend to be more inclined to ways of enumerating substantive standards to consummate judgment standards of administrative penalties obviously unfair. Such standards are mostly grown out of the proportion principle and equal treatment principle. This article suggests that because of the scarcity of the law and regulations, to a certain extent it makes the courts absorb the academic views. Facing academic standards limitations, however, the courts seem to keep the distance with the academic substantive standards when confront the trial practice. Through combing and reflection on the existing theoretical and practical point of view, this article attempts to conduct modeling of judgment standards of administrative penalties obviously unfair on the basis of traditional based proportion principle and equal treatment principle. Based on this understanding, this article discusses judicial review of administrative penalties obviously unfair from angles such as power limits, procedure qualifications and substantive examination of the counterparty, law and regulations, and objective results. This article further explores the unique personalities of the proportion principle and the equal treatment principle in the field of administrative penalties obviously unfair, In addition, this paper argues that categorized pattern of examination standards of administrative penalties obviously unfair have some certainty, as well as fluidity as the change of the specific details. Therefore, it needs to take the scope of third person or counterparty’s subjective factors into account in the examination process.