Research On The Application Of Rationality Review In Administrative Litigatio

Administrative litigation is an important way of judicial review.The courts examine administrative acts in administrative litigation as a way of administrative judicial review.Under the environment of ruling the country according to law,the court’s review of administrative acts has changed from the original pursuit of legality review to a higher requirement for the reasonableness review of administrative acts.However,there are still many academic differences on how to carry out the reasonableness review,how to carry out the reasonableness review,and how to apply it.On the way to pursue the rule of law and judicial justice,clarifying the specific application mode of reasonableness review and exploring the system construction of reasonableness review can not only clarify the theoretical logic of reasonableness review,but also help to protect the rights and interests of administrative counterparts.In practice,there is a lack of regulation in the examination of reasonableness in administrative litigation in China.The only laws and regulations it can refer to are Article 6 and Article 70 of Administrative Procedure Law.Just because of the lack of legal basis,in practice,judges are always inclined to avoid the reasonableness review.Even if some cases meet the conditions of reasonableness review,judges will try to avoid the reasonableness review by applying other laws and regulations.As a result,it is difficult to regulate the administrative discretion of administrative organs in reality.So how to objectify the reasonableness review becomes an important problem to regulate the administrative discretion.To objectify the reasonableness review in judicial practice can effectively limit the abuse of government power,protect the rights and interests of the administrative counterpart,and reverse the current administrative litigation situation in our country,in which the government is too powerful,the administrative counterpart is too weak relatively.The reasonableness review in this paper for the specific problem,unlike the previous static theoretical analysis,from the perspective of dynamic administrative litigation,is divided into the following three problems.The first is the scope of reasonableness review.This article embarks from the case that the administrative litigation reasonableness review can be divided into the facts and legal issues,to study the scope of reasonableness review.The second is the question of the method of reasonableness review.Starting from the process of the application of administrative act law,this paper classifies and discusses the method of reasonableness review.Different review objects determine different methods of review,so as to make the whole process clear.The intensity of reasonableness review,the original pattern of judicial practice problems tend to reflect the strength of censorship in the perspective of hindsight,is the analysis of a passive mode,and the intensity of the presented for review of control is a kind of active intervention,to apply examination way after readjustment and control of the strength of the overall review,At the same time,reflecting the intensity of review in the judgment is convenient to restrict the scope of judges’ subjective judgment in the procedure.The first chapter discusses the basic position of reasonableness examination in administrative litigation.First of all,the article explores its position in the system of administrative litigation laws and regulations in our country,and then the relationship between it and the basic principle of administrative law,the principle of reasonableness,in order to get how to stipulate the reasonableness review.The second section discusses why the reasonableness review should be carried out and concludes that it has certain significance for the substantive rule of law and judicial supervision administration.The second chapter uses case analysis to search cases from January 1,2018 to August1,2021 to analyze the reasonableness review,from which we can understand the status quo of reasonableness review in judicial practice and the problems reflected in it.According to the analysis of the scope,method and intensity of the three different points of view,it is concluded that the existing provisions of the law is not clear,the logical loopholes of the law itself and the lack of review mode are the reasons leading to the present situation of reasonableness review.The third chapter studies the scope of reasonableness review,and holds that the scope of reasonableness review should not include the question of fact,but should include the discretion of elements,the discretion of effect and the discretion of procedure.The fourth chapter,after determining the scope of reasonableness review,studies the method of reasonableness review.The method of reasonableness review is summarized and concluded that,under the "apparently improper" provision of the sixth paragraph of Article 70 of the Administrative Procedure Law,with respect to different review targets,there is a layout of substantive review as the main method,procedural review as the subsidiary and procedural review as the supplement,so as to establish a logical and systematic application of methods of reasonableness review.The fifth chapter studies the intensity of reasonableness review.The intensity of review is related to the method of review.Different methods of review are the means to achieve different intensities of review,and the intensity of review is the means to achieve the final goal by applying different methods of review.The ultimate goal is to measure the value between discretion and protection of rights and interests,which should be clearly expressed through reasoning,and the intensity of review can be controlled through judgment results.