On The Judicial Determination Of "Obvious Improperness"administrative Act

After the revision of the Administrative procedural Law of the People's Republic of China(hereinafter referred to as the Administrative procedural Law),a provision on "obvious improperness" was added to Article 70.This has changed the grounds for revocation of administrative acts from the previous five to six.Although the addition of "manifestly improper" adds to the court's grounds for setting aside the judgement,due to this amendment,the relevant legislatures have not explained the meaning of "obvious improperness" and how to determine it accordingly.In the general rules of the administrative procedure law,how to understand and identify the "obvious improperness" has become the concern of scholars under the expression that the legitimacy review is still maintained.Focus,and in judicial practice,different judges' understanding of "obvious improperness",the way and the standard are not unified.The existing understanding of "obvious improperness" in academia is mostly from the perspective of academic rationality,so as to show the connotation of "obvious improperness".However,this kind of analysis will inevitably lead to the limitation of the thinking and scope of the analysis to the theoretical level,while neglecting the role and problems caused by "obvious improperness" in the judicial practice.Therefore,how to understand and identify "obvious improperness",we can try from two angles: theory and practice.In order to fully display the whole picture of "obvious improperness",this paper analyzes its etymology from the aspects of daily semantics and legal norms,and reviews its formation process.To analyze the meaning of "obvious improperness" may be given,and thus to arrive at its concept."obvious improperness" can be added to the basis of judicial review in this amendment,which is closely related to the appeal of reasonable examination in theory and practice.However,in the case that the principle of legality review is still the only expression of the administrative procedure law,in order to make "obvious improperness" play the function that it has been given,respectively,Whether the court can examine rationality,how to clarify the relationship between legitimacy and rationality,and what is the relationship between "manifestly improper" and reasonable examination respond to these theoretical questions.For the confusion of the "obvious improperness" application mode in the judicial practice,through the summary of the applicable way in practice and the cause analysis,the relationship between the obvious improper and other grounds of revocation can beclearly clarified.It is clear that the scope of application of "obvious improperness" is the administrative act which has the choice of discretion,which can be applied to the applicable link of law,the link of procedure selection and the link of processing result.Through combing the relevant judicial decisions,recognition In order to determine "obvious improperness" administrative acts,a more objective and pluralistic standard of judgement should be adopted,including,but not limited to,"failure to take into account relevant factors","violation of the principle of proportionality","violation of the principle of equality" and "violation of the principle of due process","breach of the principle of protection of trust",etc.