Research On The Standard Of Judicial Review Of Administrative Litigation

Review standard of administrative litigation is an important system, which define the power of administrative trial and divide jurisdiction and administrative power into different fields. However, at present, the domestic research mainly focuses on the distinctions between the issues of fact and law, the reasonable review of the discretion as well as the contractual review of the administrative contract. Very few people systematically put forwards specific review scheme with the perspective of the litigation types, according to different nature of the administrative lawsuit types. This paper, starting from the present situation of review standard of administrative litigation, explores the different definitions of standard of review in judicial practice and academic circles, then investigate the realistic problems of the review standard of administrative litigation in China. At the same time, from the legislation purpose, the type of litigation and trial object, it reflects on our country's Review standard of administrative litigation which ought to be. On this basis, in order to realize the legislation purpose in administrative litigation and to improve judicial efficiency, this article learns from the overseas relative experiences, such as Britain, France and Germany, to claim different review standards in the different types of litigation.This article is divided into four parts. The first part introduces the definition and practical difficulties of our country's review standard of administrative litigation. In the judicial practice, the judge still adheres to the principle of legality review, but has breakthrough the original connotation. In the academic circles, most scholars view that we should directly get rid of legitimacy review principle. In terms of current review standard of administrative litigation, there still are many problems such as the rigid review standard, the contradiction of law itself, the impact of public-private partnerships. The second part, from the aim of litigation, the types of litigation and the trial object, reflects our country's review standard of administrative litigation which ought to be. The change of legislative purpose, diversity of litigation types and ambiguity of trial object urge the update of the principle of legality review. The third part draws lessons from the overseas experience. England is the origin country of the principle of the rationality review, probing its arising and developing of review standard as well as clarifying the context of the problem. However, France and Germany have accumulated rich experiences on the problems of administrative litigation types and review standards, which can offer necessary thinking for the construction of our country's review standard of administrative litigation. The fourth part constructs standard system of review in administrative litigation. When reviewing the administrative public interest litigation, we can apply to the principle of legality review. When reviewing the revocation proceedings of "exceeding authority" and declaratory judgment, we can apply to the integration mode of principle of legality and rationality review. When reviewing the revocation proceedings of "abuse of power" and "obviously improper", change litigation and payment of litigation, we can apply to the parallel principle of legality review and rationality review. When reviewing the administrative agreement litigation, we can apply to the principle of contractual standards which above the legitimacy and rationality review standards. In order to form a scientific and comprehensive standard system of review in administrative litigation, we can clarify the relationship between the various standards.