Research On The Standard Of "Obvious Inappropriateness"

In China's administrative litigation, the court, mainly reviewing the legality of administrative action, under special circumstances, evaluate the reasonableness of the problem identified by administrative action "abuse of power" and "Injustice." With the continuous expansion of administrative activities in the areas of social life, the scope of administrative power covers almost all aspects of civic life. However, on the legislative level administrative legal norms of administrative power regulation can not reach every aspect of a matter. and administrative activities, in the actual encounter, is completely different. Therefore giving wide discretion to the executive and freedom is essential.However, the exercise must be accompanied by the abuse or the rent-seeking of power. In the process of administrative discretion, infringement may be generated to relatively legitimate rights and interests of people, leading more and more administrative proceedings caused by unreasonable administrative action. Principles of Administrative Procedure Law, traditionally only reviewing the legality of administrative acts, are constantly under attack in relation to real cases. Therefore, under this very circumstance the new Administrative Procedure Law first adds the statement of " obvious inappropriateness" in the process of decision modification in relation to revocation and changes in judgment, highlighting the importance of rationality review of administrative acts.Based on this, this article has discussed in detail about the section in relation to "obvious inappropriateness" in the Administrative Procedure Law modification. This article consists of an introduction, body and conclusion. In the introduction, the author introduces the background and significance of the topic through the introduction of highly influential Hui Tang case. Moreover, the author briefly introduces the related " obvious inappropriateness" research at home and abroad to clarify the main writing thesis, illustrating the use of case study as well as research methods and innovation of comparative analysis.The main discussion is decided to four parts to illustrate the statement of " obvious inappropriateness" in detail. In the first part, the author clarifies the concept of " obvious inappropriateness" through analyzing the view of it and its rationality concluded by foreign scholars. Then, from the perspective of the actual court, " obvious inappropriateness" is further divided into those with formal meaning and practical one through discussing their meaning and value. On this basis, through the analysis of the principle of legality and reasonableness, the author explicitly states the property of " obvious inappropriateness" in the Administrative Procedure Law.In the second part, the author compares the " obvious inappropriateness" and the content-related "abuse of power" and "obvious unfairness" in the past Administrative Procedure Law, on the basis of analyzing the defect of the related judgment, to clarify the positive role of rationality review on " obvious inappropriateness " and its status and value on the revocation and change of judgment in cassation,The last two sections discuss the method to make the obviously inappropriate review standard applied in the administrative proceedings. Generally, the first thing to solve is the scope application of improper standard of review, the macro-control problem in rational principle, especially in the principle of prohibiting improper coupling as well as the principle of proportionality, and the establishment of the principle of proper proof standard of review. Thereby, the second step is to review the subjective essentials, the objective elements and the program requirements. The subjective essentials consist of related factors about administrative activities. The objective elements review contain review of normative documents, administrative counterpart, administrative investigation and the results of four discretion.In conclusion, the author thought about the relation between the administrative review system and that with "obvious inappropriateness". Since the underperformance in exploring administrative reconsideration system, the author prospects the future development of administrative litigation system, in order to provide more theoretical support and practical guidance for court's reasonable review with obvious inappropriate review standard.