Research On The Judicial Application Of "obviously Improper" Administrative Actions

In November 2014,the administrative procedure law of the People's Republic of China(hereinafter referred to as the "administrative procedural law"),modified in article seventy of the people's court to cancel or part of the reason for revocation of administrative ACTS are a new "improper" obviously,the sixth standard for court review of administrative action,the scholar thinks,the people's court review on administrative behavior rationality problem resulting from legislative confirmation.Because of improper "obvious" involving the rationality of the administrative behavior problems,rely on the discretion of the judge in the judicial practice,it will need to rely on the judge law for many years experience and professional quality,so the legislation and judicial interpretation is difficult to connotation and extension of "obvious inappropriateness" clearly defined,makes "clearly inappropriate" an uncertain legal concept,this also leads to practice and how to apply for "clearly inappropriate" in the theoretical circle is still controversial.Whether the court can examine the rationality of the administrative act has been widely concerned.Many scholars have discussed this issue and come to some relatively unified views: the court examines the legitimacy of the administrative act,and the scope of examination is based on the discretion of the entity.However,since the amendment of the administrative procedure law in 2014,the application of "obvious misconduct" as the reason for the court to review administrative ACTS is still inconsistent with the consensus reached by the academic community.Against improper "obvious" for the problems existing in the process,this paper through analyzing the way of case study,based on it when I read it to form a more unified understanding and court in the judicial practice for the status quo,analysis of the judge in the case of the referee,summarized "clearly inappropriate" in the long-term problems in the process of apply,regulating the administrative discretion and limitations in the judicial censorship,puts forward Suggestions for the reference.This paper mainly consists of three parts: The first part introduces the basic theory of "obvious improper",clarifies the basic concept of "obvious improper" and its relationship with other relevant concepts,and makes a comparative analysis on the current situation of theoretical research on "obvious improper".The second part,through sorting out the administrative judgment,explores the idea of "obvious improper" application of the court in the judgment reasons,and summarizes the problems of "obvious improper" application of the court in judicial practice,mainly from the two aspects of chaotic scope of application and limitation of review standards.The third part,guided by the "obvious inappropriateness" applicable judicial experience,based on the "obvious inappropriateness" applicable scope,clarify the logical relationship between review with other elements at the same time,specification "clearly inappropriate" standard of judicial review,in theory,a unified understanding of "obvious inappropriateness" examination standards,in practice,to strengthen the uncertain legal concept "obvious inappropriateness" reason,the referee.