On The Apparently Improper Judicial Review Of Administrative Compulsory Measures

Administrative coercive measures are administrative actions in which administrative agencies exercise discretion to restrict the rights and interests of counterparties.They have the possibility of infringement of legal interests.In the process of actual law enforcement,administrative agencies often cause disputes because of administrative coercive measures such as seizure,seizure,and restrictions on personal freedom.Obvious impropriety is an important criterion for judicial authorities to review administrative discretion,and it must be applied to the examination of whether administrative coercive measures are reasonable or not.After the amendment of the Administrative Procedure Law in 2014,it became apparent that impropriety became the darling of judicial review.Under the commanding status of legality review,apparently improperly opened the door for administrative discretion review.The judicial organs have legally entered the field of administrative discretion review.However,the apparently inappropriate application situation is mixed: on the one hand,it can indeed force the executive authorities to exercise their discretion carefully and help the judicial organs to substantially resolve administrative disputes.On the other hand,it is obviously improper and there is also a phenomenon of abuse.For example,it can become a common reason for judicial agencies to judge the flaws in law enforcement procedures,or an excellent substitute for abuse of power,and it can be transformed into a summary word that describes the entire administrative behavior as unreasonable.At the same time,there are inherently inadequate problems,such as vague connotations,difficult to define,multiple judgment methods and many disputes.The lack of heat in the research and discussion of administrative coercive measures,and the lack of special theoretical research in combination with obvious improper measures.The article used the Chinese Judgment Documents Network and Peking University 's magic platform to collect relevant cases and understood the current status of judicial review of administrative coercive measures.The article extracts the reasons for the obvious improper administrative coercive measures in judicial practice based on the case:unclear facts,purpose illegal,violation of legal procedures,administrative agencies have not considered relevant factors,act violates the principle of minimum violation and administrative rationality.The article analyzes the problems in the case:five standard mixes.Judgmentstandards for apparently improper administrative coercive measures are not uniform.Existing research results are mostly based on the macro perspective,and it is inevitable that there will be problems of soil and water rejection when applied directly to administrative coercive measures.The point of the article is that review criteria to return to discretionary results.Criteria for review of obvious impropriety is a reasonableness review,it is different from the other five censorship criteria,the application of wrong laws and regulations needs further discussion in the theoretical and practical circles.Finally,the article is based on the principles of administrative law,combining the reasons found in the case and the relevant experience of reviewing the rationality of administrative discretion in foreign countries.Criteria for judging unreasonable administrative coercive measures have the following contents:Means are not objectively appropriate and means violate the principle of least violation,the results pursued by administrative coercive measures are not necessary,relevant factors have not been properly considered by the administrative organs when implementing administrative coercive measures.