Application Of "Clearly Inappropriate" In Administrative Litigation Law

In the revision of the Administrative Litigation Law in 2014,the “obviously inappropriate” of Article 60 of the sixth item was added as an illegal revocation of administrative acts,providing a judicial review of the reasonableness of administrative discretion by the People's Court.New way.In administrative activities,discretion is objectively present.In the judicial review,it can also be reviewed.However,for what kind of discretion,the question of his rationality has reached the level of legality evaluation,which is different.Opinions.Therefore,what is the connotation of "obviously inappropriate" ? What is its review standard remains to be further investigated.Under the ever expanding administrative power,the regulation of administrative discretion is an important research direction of contemporary administrative law.Under this background,in the course of the development of the Administrative Procedure Law in 1989,China listened to multiple opinions,used “abuse of power” as a revocable circumstance for administrative violations,and incorporated the regulation of discretionary powers into judicial review.However,due to lack of legislative technology and lack of legal understanding,this clause has not been used for a long period of time,and it has also been inappropriately applied in specificapplications.In view of this situation,in the process of amending the Administrative Procedure Law in 2014,“obviously inappropriate” clauses were added to ease the related difficulties.The "obviously improper" clause with high expectations was applied.Due to the ambiguity in legislation and the lack of a unified understanding of the concept in the academic circles,the expected effect was not achieved in practical application.In a comprehensive review of existing “obviously inappropriate” academic research,it is concluded that at present,academic understanding of “obviously inappropriate”situations is mainly focused on 1,regardless of relevant factors,2 violation of the principle of proportion 3,violation of equal treatment.Principle 4,violate the already established discretionary benchmark 5,give up discretion and other five aspects.On this basis,it was further clarified that the difference between the "abuse of power" and "clearly improper" regulation that was used for the right of discretion was mainly due to subjective malice and objectively improper results,each with its own emphasis,and at the same time based on the old law.The comparison of "obvious justice" further concludes that "obviously improper" is the inheritance and expansion based on the connotation of "obvious justice".Through further sorting out the existing judicial judgments of the administrative cases,it is concluded that there is a difference between “obvious and improper” in the current academic circles and in practice.The application of “obviously inappropriate”in practice is more extensive,not limited to the recognition of the inherent effects of discretion.Instead,“obviously inappropriate” was applied to the review of the requirements and the discretion of the results,and formed a certain scale.This kind of practical phenomenon is gradually formed by the People's Court based on pragmatism considerations and the objective needs of reality.On the other hand,the "obviously inappropriate" judgment criteria based on the effect of discretion also need to be further improved in practice in order to obtain relatively clear standards and boundaries.