A Research On The Judicial Application Of The "Obvious Improperness" Administrative Act

When the "Administrative Procedure Law of the People's Republic of China"was revised,an " Obvious improperness " item was added to the revocable judgment of the court.With the promulgation and implementation of this clause,the scope of application and judgment criteria of the "obvious improperness" standard have become new issues in judicial review.The follow-up laws and judicial interpretations do not clearly define the meaning and extension of "obvious improperness",which leads to different standards and methods for judges to judge "obvious improperness" in judicial practice,resulting in completely different effects.At this time,the "obvious improperness" scope of application,considerations,and judgment standards are effectively defined,their specific connotations and judgment standards are clarified,and a reasonable and reference standard is found to reduce the confusion of judges in application.Especially necessary.Whether "obviously improper" can achieve the effect of relief depends on the understanding of its connotation and scope standards.The understanding of "apparently inappropriate " in the academic circles currently are mostly analyzed from a theoretical perspective to define the obvious improper connotation And extension,ignoring the application and problems of the judge's determination in practice.This article bases on practice on the basis of analyzing academic controversy and explores the judge's processing path when applying "obvious improperness",in order to provide a new thinking direction for its improvement.This article is mainly divided into the following parts:The first part:Analyze the discussion on the review of rationality and legality in the academia,and clarify that although China still adheres to the principle of legality review,its own connotation has undergone tremendous changes,that is,from formal legal to substantive legal;clear "obvious improperness "After being added to the review basis,in order to ensure the harmony of the system,the connotation of the previous"abuse of authority "needs to be re-discussed;the system value of the" obvious improperness "standard should be clarified.The second and third parts:through an inductive analysis of the dispute over the scope of academic application,and combing the relevant judgment documents,explore the "conspicuously improper" scope of application and review standards in the academic disputes and the application of judicial practice and specific operations Problems existed,it was determined that the scope of application was ambiguous,and the review standards were limited.The fourth part:On the basis of the above literature theory and practical investigation,the author believes that in the case of multiple judicial review standards coexisting,the understanding and application of "obvious improperness" must respect the customary use of other review basis,and We must pay attention to the harmony of the system and ensure the reasonable differentiation and effective connection of different standards.To determine whether administrative actions constitute "obvious improperness",objective and plural standards should be adopted.At the same time,in the application,we should also pay attention to improving the case guidance system.