| In 2014,the Administrative Litigation Law of the People’s Republic of China was amended,and the standards for judicial review of "obvious improper" was added to Article 70.This amendment indicates that the apparently unreasonable administrative act has formally entered the scope of judicial review.However,the evidently inappropriate criteria for judging administrative acts are neglected in the law,which leads to confusion of various review criteria in judicial practice.In view of this problem,by browsing and screening a large number of cases on the Internet of Chinese judicial documents,selecting classical and typical cases for analysis,combing out the cases of applying the "obviously inappropriate" examination standard in our judicial practice,and finding out the differences between judicial practice and theory,mainly in the scope of application,which can be divided into whether to apply to areas other than administrative discretion and discretion.The differences in the specific application of the quantitative cases and the reasons for the confusion of the apparently improper judgment standards are analyzed.The main reason is that the different review standards can not be coordinated and unified with each other.Secondly,through the analysis of the cases,it is clear that the scope of application of the criteria for judging clearly improper administrative acts in China is the discretion of objective results.Establish the main principles of obvious improper administrative acts,including the principle of equality,the principle of proportionality and the principle of trust protection.Thirdly,by collecting the regulations of the United Kingdom,the United States,France,Germany and other countries on the standard of obvious improper administrative acts and drawing lessons from them,we can construct the judgment standard of the obvious improper administrative acts in our country by improving the case guidance system,refining the discretion standard and deepening the research on the type of judgment.Finally,we construct the criteria for judging the obvious improper administrative acts in China,and adopt multiple and objective criteria,including the following criteria: incorrect consideration of relevant factors,inappropriate administrative treatment,violation of legislative purposes,violation of basic principles,violation of administrative discretion benchmarks or administrative practices without justification,etc.Constructing our country’s obviously improper judgment standards has important significance in reducing the uncertainty of judicial review,broadening the basis of judicial review,and improving our country’s judicial review standards.At the same time,we should pay attention to the relationship between judicial power and administrative power.We should not only pay attention to the respect of judicial power to administrative power,but also strengthen the external supervision of administrative power. |
