On Judicial Review Of Obviously Improper Administrative Act

China has made a large-scale revision administrative procedure law,which has been implemented for 26 years in 2015.The review basis of Article 54 of the original law has also been revised.The revised Article 70 of the new law deleted "administrative acts are obviously unfair" and replaced by "obvious improper administrative acts".The amendment of this law is to explore the legislation of our country from the angle of the initial formation of civil society and the increasing expansion of administrative power.In essence,it is to expand the judicial review and supervision of the administrative system by judicial power,from the perspective of legal theory,It is to some extent that we have broken through the limitation that we can only examine the legality of specific administrative acts and not to carry out the rationality review.Therefore,the "principle of rationality" in the theory of administrative law is no longer a beautiful word,but a powerful judicial supervision weapon that can be used in the practice of division law.But in the five years of the new law,the legislative organs and the supreme judicial organs of our country have not issued relevant legislation or judicial interpretation for the meaning and scope of application of "obvious improper",which leads to the legal workers in judicial practice,Especially,when judicial referees at all levels use this review element to conduct judicial review on relevant administrative acts,they will have some confusion such as unclear scope of application,unclear reasoning,inconsistent conditions between judges and judges.The author has read750 judicial cases,summarized and analyzed,and found that a considerable part of judicial decisions have gone beyond the scope of discretionary administrative acts,such as the government information disclosure and real estate registration and other acts have been included in the scope of "obvious improper" regulation,which is consistent with the original purpose of legislators.But some judicial referees do not take into account the professionalism and technology of administrative acts.To some extent,judicial power should give the administrative organs respect when exercising their power.Therefore,some specific administrative acts cannot join the scope of "obvious improper" examination.This is actually the difficulty of establishing the scope and standard of "obviously improper" examination.Therefore,to establish a strong implementation of the review standard,it is necessary to ensure the dynamic balance between administrative power and judicial power and divide their respective areas of management.Secondly,there is no unified solution for the establishment and perfection of the review standard system.Based on the empirical analysis,the author thinks that the consideration of rationality principle should be taken as the basis of examination.In addition,there are the principle of the protection of the trust interests of the principle of unification of power and responsibility in administrative law.In view of different cases,the judge should be given a certain discretion in judicial judgment,so as to ensure the relative balance between the whole and the individual case.