Research On The Judicial Application Of The Standard Of Abuse Of Power In Administrative Litigation

Based on the empirical research on the judicial review documents invoking "abuse of power" in Item 5,paragraph 1,item 2,Article 54 since the promulgation of the administrative procedure law in 1989,it can be found that the specific types of administrative acts that apply the most abuse of power review include administrative registration and administrative punishment.Up to now,the base number of cases applying the review basis of abuse of power is very small compared with other review basis,reflecting that it is in the actual state of being idle.In judicial practice,there are 11 main judgment viewpoints that establish abuse of power,which are summarized into 7 identification standards,namely "non-compliance with legal provisions","no legal basis"," improper purpose"," irrelevant consideration","violation of legal purpose,spirit and principle","obvious improper behavior or result" and "negation of effective judicial judgment result".Among them,there is a clear corresponding relationship between improper purpose and abuse of power.The diversity of judgment reasons reflects the adoption of both the principle of legitimacy review and the principle of rationality review in practice.The judicial differences in the application of abuse of power include whether the subject of abuse of power includes staff,whether subjective fault is the identification element for the establishment of abuse of power,how to define the scope of power,and whether abuse of power is in parallel with other review standard s or in-depth relationship.The vague judicial connotation of abuse of power and the unclear boundary between abuse of power and other review standards lead to the problem of idle and improper application of the judgment standard of abuse of power in judicial application,which further leads to the problem that it is difficult to form a unified identification standard of abuse of power in practice and the identification of subjective fault.We can promote the normative application of the review standard of abuse of power in judicial practice from two aspects.On the one hand,the judicial connotation and manifestation of abuse of power are established through judicial interpretation.On the other hand,we can promote the normative application of the review standard of abuse of power by giving play to the auxiliary role of precedents,standardizing the production of judicial documents,optimizing judicial review technology,giving full play to the initiative of judges and improving relevant systems.