Research On The Sentence Of "Obvious Inappropriateness" In Administrative Penalties

The Article 70 of the Administrative Procedure Law of the People’s Republic of China stipulates that an “obviously inappropriate” administrative act may be repealed,while Article 77 provides that the court could make a modification judgment on such administrative penalty.The court has the power of judicial discretion between the repeal judgment and the modification judgment,when it comes to an “obviously inappropriate” administrative punishment.Although legislators think that the repeal judgment is the basic form of the modification judgment,there is no clear legal standard for the choice criteria between the repeal judgment and the modification judgment.There is almost no explanation on the choice of these two kind of judgments.Sometimes,the courts apply different kinds of judgments in almost the same case.Facing this problem,through the observation and analysis of the cases of obviously inappropriate administrative punishment,the author divides the selected case into three categories:(1)“Causal relationship”: the result of the “obviously inappropriate” administrative punishment being sued is due to “the lack of main evidence ”,“ erroneous application of the law or regulations ” and other several basis of the judicial reviews,but the court only consider the administrative punishment as “obviously inappropriate” in the main text of the judgment;(2)“Composite results”.The accused administrative act is consistent with the characteristics of “obviously inappropriate” and one or more of the other five reasons for a repeal judgment;(3)“Simply inappropriate”.The accused administrativeact has and only has the characteristics of “obviously inappropriate” and does not violate the other five criteria for review in Article 70.And summed up the main problems in the relevant judicial practice are:(1)Confusing the relationship between“obviously inappropriate” and other basis of the judicial reviews;(2)The choice of the judgment of “obviously inappropriate” administrative punishment is arbitrary.Combined with the relevant cases,and comparative analysis of the respective functions and advantages of the two forms of judgments,this paper draws the corresponding recommendations for the judgments of obviously inappropriate administrative punishment:(1)“composite results” should be applied to the repeal judgment;(2)“the inevitable result” should be absorbed by the “causal relationship”;(3)the elements of appling the modification judgment on “simply inappropriate”.It is hoped to contribute to the development of judicial practice in the future.