Abuse Of Administrative Power: From The Subjective Perspective

As a judicial standard for revoking an alleged administrative action,“abuse of power” hasn't been properly used in our country's administrative lawsuit.There are four problems in this scenario: First of all,the definition of “abuse of power”standard is extremely vague.Although there are many definitions that come from theory and practice,the starting points and conclusions of them are diverse.“Abuse of power” standard couldn't operate without a unified definition.Secondly,the meaning of “abuse of power” is different in Administrative Litigation Law,Criminal Law and daily expression,which may be misunderstood in the range,the object and the method of judicial supervision.Thirdly,the application of “abuse of power” standard means a significantly negative evaluation.“Abuse”,connecting with“power”,can be understood as “overuse” or “mishandle”,implying the fact that administrative organization didn't exercise power in a normative way.Compared to the other standards,“abuse of power” has a wider range and a higher level of criticism.Fourthly,the court prefers not to apply “abuse of power” standard.The application of“abuse of power” standard means the negation of administrative organization itself and not being able to focus on the administrative act or result in the written judgment.In order to prevent an over-corrected judgment,the court will choose other standards to revoke the administrative act,which causes the “disappearance” of “abuse of power”standard.Avoiding “abuse of power” standard and applying other standards can reach the goal of revoking administrative act,but in long-term this method will jeopardize the stability of entire revocation judgment system: “abuse of power” standard can't be properly used,it might lose the meaning of a revocation judgment standard.Under this circumstance,other standards might become the substitutes for “abuse of power”,the meaning of themselves might also fade.Disappearance of “abuse of power”standard reduces the power of judicial review,which should be averted.“Abuse of power” standard cannot be fully understood unless it has been faced correctly.In Administrative Litigation Law,“abuse of power” means administrative organ's abuse of discretionary power.When using discretionary power,administrative organ can choose the variety,the span and the mode of an administrative act,in which exists the subjective will of administrative organ.“Abuse of power” is a severe legal validity,in this situation discretionary power has broken away from normal status,which produces an “impossible outcomes”.Using the word “abuse” stands for evaluating administrative organ,considering the feature of discretionary power,the court should review the administrative organ's subjective will when it comes to apply“abuse of power” standard.Administrative organ's subjective will should be “abuse of power” standard's constitutive element.Administrative organ's subjective will must be intentional in a power abusing scenario.Compared with “overstepping of power” standard and“evident inappropriateness” standard,“abuse of power” standard breaks away the normal status of discretionary power and produces a severely inappropriate outcome,for which the administrative organ must have a clear understanding and a positive pursuit.A clear understanding and a positive pursuit come from an illegal purpose,which is different from the incompatible purpose.An illegal purpose runs in the opposite direction to the rule,the principle and the spirit of law,and it begins with malicious motive and aims for private profit.In a word,administrative organ's subjective will impact the entire process of power abusing.Driven by the malicious motive,administrative organ cultivates an intention to violate the law.Administrative organ's subjective will is not suitable for the other standards,it might raise “abuse of power” standard to the concept of“alleged administrative action” and erode other standards.Considering administrative organ's subjective will as “abuse of power” standard's constitutive element is to make it the last stand for judicial review,in case administrative organ use a legal appearance to infringe administrative counterpart's right.