"Obviously Improper" Reflected In The Court Decisions

Article 70 and Article 77 in our new “Administrative Procedure Law of the People’s Republic of China” introduced “obviously improper”as a standard of judicial review.However,as a legal concept,the connotation and extension of “obviously improper” still have great elasticity.In addition,there is a lack of clear definition in our normative document of law.It brings a lot of inconvenience to the judicial practice.What the judge needs to be taken into account in the proceedings is how to make judicial supervision effective,but also to avoid excessive expansion of judicial power.Therefore,it is of great significance for both theory and practice to make clear the “obviously improper”.In this paper,the judgment of the court as the starting point,to observe the judges how to measure the standard of “obviously improper”;to explore the judges how to determine the object and elements of this concept;to probe the implication of “obviously improper”.The conclusions of this study are as follows:(1)The court insists on the standpoint of substantive legal statement,and regards the discretionary administrative act as the object of “obviously improper”.(2)Identification criteria of “obviously improper” are complex and diverse,including the legislative purpose,legal principles,natural law,social morality,the standard has been formed and so forth.Besides,the objective standards weighs lightly.(3)The intensity of “obviously improper” reviewing in administrative appeal are more prudent than that in administrative reconsideration.Meanwhile,the intensity of the court’s review will change with the level of restriction of law on administrative discretion.However,the strict administrative act should not be ignored,and the already formed discretion standard should be strengthen.