On The Judicial Application Of Obviously Inappropriate Administrative Punishment

The examination standard of obviously improper administrative punishment has entered into the administrative procedure law,and the court can use the obviously improper clause to examine the rationality of administrative discretion,which marks the era of substantive legality examination of administrative litigation.There are many forms of the judgment of the court on the obvious improper administrative punishment,such as the thoughtlessness of the fact determination,the obvious error of the administrative punishment decision,the violation of the principle of the penalty equivalent,and the violation of the legislative purpose and the spirit of the policy.However,there are still some deficiencies in the application of the clause of obvious administrative impropriety: the cognition of obvious administrative impropriety is not accurate,the standard of applying the modified judgment or the revocation judgment is different,and the original administrative punishment is judged by the new facts.Therefore,the author from different aspects for the obvious improper application of administrative punishment to give some suggestions.From the scope of application,the administrative punishment is obviously inappropriate and only applicable to the discretion of the decision.On the one hand,this is more in line with the original intention of the legislation,the change of obviously improper administrative punishment is the result of the change of punishment.On the other hand,this is also due to the consideration of the normative system.It is obviously improper to examine administrative punishment only on the discretion of the handling decision,which can reduce the hindrance to the traditional examination path,so as not to cause confusion in judicial application.From the perspective of judgment standards,the court should comprehensively use the objective judgment standards such as violating the principle of proportionality,violating the principle of equality,deviating from the discretion benchmark without justifiable reasons,violating administrative practices and guiding cases to identify obvious impropriety.Among them,the principle of proportionality can not be directly used to review obviously improper,in order to introduce the concept of proportionality principle into the obviously improper review,it needs to be limited.For example,the judgment standard of serious violation of the principle of proportionality is adopted,including the principle of excessive punishment and violation of legislative purpose which is often used by courts in practice.From the perspective of the intensity of examination,the court's examination of administrative discretion should be limited and moderate.In the discretion of administrative punishment,the judicial organ must not overreach its role,but to maintain judicial modesty,the necessary comity and respect to the administrative organ.A diversified review intensity system should be gradually established in the future.For the reputation penalty such as warning and notice of criticism,lenient examination shall be applied.For property penalties and conduct penalties,moderate review applies.For the punishment of personal freedom such as administrative detention,it needs to be strictly examined.When the court finds that the administrative punishment is obviously unreasonable,the main ways of judgment that the court can choose are to revoke(redo)the judgment and change the judgment.When the people's court considers the administrative penalty to be obviously unreasonable,the cancellation of the judgment shall take precedence over the alteration of the judgment in the selection of the judgment.On the basis of the court's determination that the facts are clear,if a change of judgment is applied,it should be fully reasoned in the judgment.