Recognition Of "Abuse Of Power" In The Revocation Judgment Of Administrative Procedural Law

According to the provisions of article 70 of the administrative procedure law,"abuse of power" is one of the grounds for the court to make a revocation judgment.But what exactly is "abuse of power" and how to accurately determine whether an administrative organ is "abuse of power" in judicial review are not clear at the level of legal provisions or judicial practice.Looking back at the thirty years of theoretical development of "abuse of power" in administrative law,it has changed from focusing only on its theoretical definition to focusing on its judicial practice application.It has become a frontier issue in the current theoretical research of administrative law to determine the "abuse of power" according to which criteria and paths.At present,there are different views on "abuse of power",such as the theory of violating the purpose and principle,the theory of subjective intention and the theory of obvious impartiality of results.The theoretical disputes mainly focus on the scope and nature of "abuse of power".In terms of scope,one view holds that "abuse of power" is abuse of discretion.Another is that "abuse of power" is not only abuse of discretion.As far as the nature is concerned,"abuse of power" has two views: illegal administrative act and improper administrative act.In fact,in addition to the abuse of discretion,the abuse of restraint discretion also exists widely.Moreover,the completion of an administrative act is a dynamic process,in which the use of restraint discretion will also involve discretion.It is difficult to separate the two in an administrative act.The theory of administrative law,the redistribution of discretion and restraint discretion is no longer carried out,but is summarized by "administrative discretion".Nowadays,it is unscientific for an administrative organ to have a wide range of functions and powers,and then limit the "abuse of power" to the scope of abuse of discretion.Abuse of power should be abuse of discretion.There is a theoretical division between illegal acts and improper acts in administrative law,but the scope of illegal acts here is not exactly the same as that of illegal acts included in the legality review in administrative litigation."Abuse of power" should be illegal in administrative procedure law.The difference between abuse of power and other grounds for revocation is that it applies to the field of discretion and requires the administrative organs to make mistakes subjectively.The ultimate goal of theory is to provide guidance for judicial practice.A large number of cases of abuse of power show that administrative organs may be regarded as "abuse of power" when they have subjective faults,abuse of discretion,abuse of restraint discretion,violate legal purposes,violate due process,and formal legal but violation of content.The manifestations of abuse of power are diverse,and the reasons for identifying abuse of power are also diversified.There are some problems in the application of "abuse of power",such as the different understanding between the court and the litigant participants;Less practical application;Unclear boundaries from other review standards;The unclear reasons for the court's determination and so on.This is due to the diverse connotations of abuse of power in different departmental laws and daily understanding,the transfer review strategy of courts,the inconsistency of theoretical disputes and the overlapping relationship between abuse of power and other grounds for revocation.The essence of "abuse of power" is that the behavior and content of administrative organs deviate from the spirit of legal principles and general principles.Therefore,based on the premise that "abuse of power" is an illegal act of abusing discretion,the court can take purposes review and objective review as the criteria of determination.The principle of proportionality can also be used by courts in examining the abuse of discretion.Generally,it follows the mode of "subjective fault + unusual performance + objective result of violation of legal purpose + unjustified reason = abuse of power".