A Study On The Nature Of The Obviously Improper Administrative Act And Judicial Determination

The new "administrative procedure law" added administrative act "obvious impropriety” as a judicial review,which will undoubtedly be beneficial to the solution of some of the previous administrative disputes due to lack of corresponding examination,but for what the “obvious impropriety” as well as its legal nature and judicial cognizance standard is,the researches of academic circle and judicial practice hold different views and are lack of unified understanding and summary.Firstly,this paper analyzes the meaning of administrative act "obvious impropriety"from four aspects,and analyzes that its applicable scope mainly occurs in the field of administrative discretion.In order to better understand the connotation of "obvious impropriety",I also distinguish it from other concepts.From multiple perspectives,this paper not only analyzes the legal nature of administrative act "obvious impropriety" should be “illegal”,but also distinguishes it from the general illegal acts.In my opinion,there is no rationality review in the judicial review.Therefore,the court should review the legality of administrative act "obvious impropriety”.In addition,the judicial cognizance of "obvious impropriety” includes the general applicable standards and specific applicable standards.The general standards are that the administrative acts obviously violate the common reason,feeling and sense a normal rational person in society long and generally recognizes;and the specific standards are mainly but not limited to the principle of equality,the principle of proportionality,the principle of due process and public order and good customs,etc.