A Research On The Judicial Cognizance Of Administrative Penalty “Obvious Improper”

"Obvious improper" as a new basis for judicial review was incorporated into the newly revised "Administrative Procedural Law",indicating that the depth and breadth of administrative discretion into judicial review has been further expanded.As a judgment criterion for discretionary behavior,"obvious improper" is the specific application of the administrative rationality principle in judicial practice.However,due to the vacancy of China’s legislation and relevant judicial interpretation,the academic and practical circles have not reached a unified understanding of what is "obvious improper",its nature and its judicial determination standard,and there is a lack of consensus.In judicial practice,administrative penalty as one of the most important administrative action,is also the most performed by administrative subjects,which affects the rights of administrative counterparts.And there are multiple judgment methods applicable to administrative penalty,such as revoking judgment and changing judgment.At the same time,article 77 of the administrative procedure law clearly stipulates that the administrative penalty "obvious improper" and the provisions of article 70 also has cross and overlap in the determination.Therefore,this article will take the administrative penalty case as the breakthrough point,focus on the issue of judicial identification of "obvious improper" of administrative penalty.This article uses the case of "China Judgment Document Network" as the sample data,and through the search of keywords,screens and collects 410 valid case data of the administrative penalties "obvious improper" from 2015 to 2019.Based on factors such as the level of the court,the time when the administrative penalty is made,the organ that made the administrative penalty,the type of administrative penalty,the result of the administrative penalty for type analysis.Try to in-depth study of the situation of administrative penalty "obvious improper" and the standards for judicial recognition in China’s practice through the type analysis results.The case analysis shows that there are various manifestations of administrative penalty "obvious improper",which are manifested in three situations: the content obvious improper,the punishment responsibility obvious improper and the procedure obvious improper.And there are some problems in practice,such as unclear identification standards,disunited refereeing way and inconsistent refereeing results in practice.Combined with the handling situation in practice,the paper sums up that the judicial standard of "obvious improper" can be determined from the principle of equal treatment,proportion principle,principle of due process,consideration of relevant factors and compliance with the original intention of legislation.At the same time,under the existing system,the author tries to put forward the prospects of judicial adjudication of administrative penalty "obvious improper" in China from the aspects of issuing judicial interpretation,refining the discretion benchmark,improving the case guidance system,strengthening the research on the type of administrative judgment and strengthening the vocational training of judges.