On The Coordination Between "Legality" And "Obvious Improperness"

Article 6 of the "Administrative Procedure Law" stipulates: "In handling administrative cases,the people's courts shall examine the legality of administrative acts." This is considered to be the principle of legality review in Administrative Procedure Law in China.At the same time,Article 70,Item 6 of the "Administrative Procedure Law" also included the "obvious improperness" administrative action as the object of review.It was generally stated that this was an administratively reasonable content,and this would be the same as Article 6 of the Administrative Procedure Law.There was a conflict.The academic community's interpretation of this issue has undergone a transition from "exceptional" to "substantive legitimacy",that is to say that "obvious improperness" is an exception to "legitimate review" and "obvious improperness is also illegal".However,the theory of "substantive legitimacy" has not yet been unified and there are still contradictions.The attribution of the interpretation to a "substantial law" does not meet the requirements of modern rule of law and must be corrected.Through the investigation of the concepts of "legitimate" and "obvious improperness",the concept of "legitimacy" can only stop at normativeness,and what "obvious improperness" has to solve is beyond legality.Through the theoretical positioning of the concepts of "legitimate" and "obvious improperness","legitimate" corresponds to administrative statutory principles in administrative law,and "clearly inappropriate" corresponds to administrative equilibrium and administrative due principles in administrative law.Through the use of the above theory,the interpretation of Article 6 of the Administrative Procedure Law should be "The court should examine whether the administrative act conforms to the form and justice," and the review of formal justice replaces the so-called "discretionary principle and trial principle" or "The principle of legitimacy review" and the interpretation of Article 70,Item 6 of the "Administrative Procedure Law" shall be "The court shall examine whether the administrative act conforms to substantive justice",and the review of substantive justice replaces the so-called "rationality review".