行政行为“明显不当”的司法审查

Judicial Review of Obvious Improperness of Administrative Actions

法官大范围地适用“明显不当”标准,有力地破除了多年来“显失公正”与“滥用职权”标准所遭遇的法律适用困境。法官在“明显不当”项下归纳衍生出多项子标准,从而形成过程性的行政裁量控制机制,有利于实现对行政裁量瑕疵的精准纠治。为了使“明显不当”标准符合行政裁量司法审查标准的立法定位,避免破坏司法审查标准体系的内在协调,应矫正将其作为其他司法审查标准兜底条款的泛用趋向。借助“明显不当”标准,法官将非法定程序瑕疵作为程序性裁量瑕疵予以纠正,间接补足了“违反法定程序”标准的功能缺陷,有助于落实正当程序原则的核心理念,并由此形成正当程序原则的中国意涵。

Judges make judicial review on administrative behavior in accordance with Obvious Improperness boldly and frequently,which has effectively overcome obstacles to the application of law presented by Abuse of Power and Obvious Injustice.A series of sub-standards developed by judicial practice around Obvious Improperness are forming a procedural normative mechanism of administrative discretion,which means focusing on the procedural control and correcting defects of administrative discretion precisely.However,as a judicial review norm of administrative discretion,Obvious Improperness should not become a fallback provision of other judicial review standards.Judges have made up the drawback of Violation of Legal Procedure with the help of Obvious Improperness by considering non legal procedural defects as procedural discretion defects.As a result,the judicial correction mechanism of administrative procedure defects has been constructed,and the Chinese meaning of due process principle is taking shape.