A Research On The Judgment Method Of The 'Obvious Improperness' Administrative Act

After the amendment of the Chinese Administrative Ligigation Law,the 'obvious improperness' was added as the sixth criterion for the review of administrative act by the court.It not only lowers the threshold for the court to review administrative act,but also increases that difficulty of administrative organs to avoid judicial review.It has provided a legal basis for the court make a judicial review which is irrational administrative act in the content level.Thus,the obvious inappropriateness of the administrative action was identified as illegal.But because the legislation lacks the definition of 'apparent inappropriateness',it has spawned theories and practices that have made a distinct difference in understanding.At present,the practical and theoretical circles still do not have a unified understanding of the application scope of 'obvious improperness'.Here's the following:'obvious misconduct' is able only to apply administrative discretion,Or it can include confirmation of fact,application of the law,administrative procedures problems,etc.Among them,scholars and judges are not disputable that the 'obvious improperness' can be applied to the entity discretion results.However,there are differences in the application of 'obvious impropernes' in the aspects of factual determination,legal application and administrative procedure.In view of the lack of clarity on the scope of the'obvious inappropriateness' application,some courts have applied the 'obvious misconduct' to apply in a random way.Therefore,based on the status of legislation,it is necessary to clarify the applicable scope of obvious improperness standards of review.It is convenient for the court to select the appropriate method to judge the 'obvious misconduct'in order to realize the case justice.Many scholars listed a series of ways to judge 'significant impropriety'.In some cases,the court also adopted the academic viewpoint to judge whether the administrative act was obviously improper.Of course,the court also has its own unique judicial thinking on specific cases.Due to 'obvious misconduct' is an uncertain legal concept,to use any standards need to be combined with case to judge concretely.However,the recognition standards enumerated by the academic theory are limited and cannot be solved completely.This paper investigates the application of obvious improperness standards in judicial practice,to explore the treatment path of the judge.On the basis of existing academic achievements and case experience,it is possible to connect them organically.In order to provide a new way of thinking for the court to resolve the case disputes in the future,this paper aims to systematize the identification standard of the obvious improper administrative behavior.This thesis mainly includes three parts.The first part mainly defines the scope of 'obvious misconduct'.First of all,comb scholars from the Angle of theoretical point of view.Then enumerate typical judicial cases as instructions from practical Angle.Finally,through the analysis of the theory and practice.It is concluded that 'clearly inappropriate' best applies to the entity processing results of administrative discretion and the conditions of the applicable law in the interpretation of the uncertain legal concept.Finally,it is concluded that 'obvious misconduct' is best applied to the conclusion of the interpretation of uncertain legal concepts in the results of administrative discretion and the applicable conditions of law.In the second part,by sorting out the administrative judgment,we can explore the'obvious improperness' thought of the court's application in the reason of judgment.The main ideas of these judgments are to examine whether administrative act are contrary to common sense;in violation of the principle of proportionality,equality of treatment,due process principle,trust interest protection principle;In violation of relevant considerations.The third part,based on the 'obvious inappropriateness' application range of the conclusion.Re-examine the criteria of 'obvious misconduct'.The standard of judgment put forward by scholars is integrated into the principle of proportionality.To examine the feasibility of the proper requirement,necessity and balance of the principle of proportionality to examine the obvious impropriety of administrative behavior.At the same time,it is particularly emphasized that the court should maintain the necessary limits when judging the obvious improper administrative act.