


































Economics, Law and Policy 
ISSN 2576-2060 (Print) ISSN 2576-2052 (Online) 

Vol. 7, No. 1, 2024 

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68 

Original Paper 

Research on Judicial Review of Manifestly Improper 

Administrative Acts 

HongYu Lea
1*

 

1
 School of Marine Law and Humanities, Dalian Ocean University, Liaoning, Dalian, China 

*
 Corresponding author, E-mail: 2449759465@qq.com 

 

Received: May 1, 2024       Accepted: May 25, 2024       Online Published: May 27, 2024 

doi:10.22158/elp.v7n1p68                 URL: http://dx.doi.org/10.22158/elp.v7n1p68 

 

Abstract 

Judicial review, as a form of external supervision, can effectively improve the lack of self-supervision 

by administrative subjects. Obviously improper as one of the circumstances of administrative behavior, 

the definition of the academic community, and the “Administrative Procedure Law” and its judicial 

interpretation of the lack of clear definitions and application standards, resulting in the court in the 

judicial practice of the application of “obviously improper” as the basis for review of the standard is 

not uniform and inconsistent application of the problem, judges and Relying on their accumulated 

professional knowledge and practical experience to determine whether the administrative subject of the 

administrative act constitutes “obviously improper”, with a greater subjectivity, which may lead to 

administrative action as well as the judicial trial of the phenomenon of the same case, undermining the 

impartiality and authority of the judiciary, not conducive to the construction of the rule of law, the rule 

of law government. Therefore, in order to solve the above problems, the need for the meaning of clearly 

improper and its judgment standards, standardize the “clearly improper” the scope of application of 

the basis for review, the establishment of a unified standard of judicial review, but also to continue to 

improve the administrative case guidance system. Therefore, clarifying its criteria is of great 

significance to the people’s courts in correctly adjudicating administrative cases to safeguard the 

lawful rights and interests of citizens and legal persons, and also helps to standardize the criteria for 

judicial review, and to regulate and limit administrative power. 

Keywords 

Manifestly Improper, Judicial Review, Judicial Remedies, Administrative Action  

 

 

 



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1. Introduction 

1.1 Clearly Inappropriate Textual Interpretation 

First, from a literal point of view, manifest impropriety consists of two main lexemes: “manifest” and 

“impropriety”. “Obvious” is a value judgement, indicating a degree of clarity, intelligibility and 

particular ease of recognition. “Inappropriate”, on the other hand, is a factual judgment, indicating 

unreasonableness and inappropriateness. Its overall meaning is a clear indication of unsuitability and 

inappropriateness. Obvious impropriety is essentially a general and vague legal concept, which is 

subject to subjective judgment in the light of the spirit of legislation and legal principles. 

1.2 Obviously Inappropriate Academic Opinions 

Different scholars have different views on the meaning of the term “manifestly improper” in the 

academic world. Mo Yu-chuan professor that the administrative organ to make the administrative act to 

meet the requirements of legality and reasonableness, when the administrative act reaches the degree of 

obvious unreasonableness, unfairness, that is characterized as obviously improper, then need the court 

to intervene. Professor shen han thinks: “obviously improper in the legislation is for the judicial review 

of the intensity of the establishment of a relative limit, to avoid excessive judicial intervention in 

administrative discretion. Obviously inappropriate this standard can cover the administrative organs 

due to cognitive bias, negligence or error and made with the legislative purpose, the spirit of the 

legislation, the basic principles of the rule of law, the general concept of fairness and justice or 

common sense discretionary decisions obviously contrary to each other”. Prof. Jiang Ming’an defines 

obvious impropriety as obvious unreasonableness and injustice; Prof. Hu Jianmiao argues, “Obvious 

impropriety refers to the problem that an administrative act is not in accordance with reasonableness 

although it is not illegal”. Professor He Haibo, on the other hand, from the point of view of 

distinguishing between formal legality and substantive legality, obviously improper in terms of formal 

legality, although in conformity with the legal rules established by laws, regulations, rules and so on, 

but in accordance with the point of view of substantive legality, in addition to not violating the specific 

rules of the laws, administrative regulations, rules and regulations, it also can not be contrary to the 

principles of administrative law, the spirit of the legislation, administrative precedent, public morality 

and other sources of legal expressed in the legal norms. Summarizing the above views, the author 

believes that: “Obvious impropriety is an illegal act committed by an administrative organ that is 

contrary to the principles of administrative law, the purpose of legislation, and public morality, and that 

causes substantial damage to the administrative relative and legitimate rights and interests”. 

1.3 Manifestly Improper Legal Interpretations 

In the Administrative Litigation and Judicial Interpretation Related Understanding and Application, the 

definition of obviously improper administrative behavior basically adopts the viewpoint of Professor 

Jiang Ming’an, that is, the administrative behavior is unreasonable and unjust by seriously violating the 

principle of reasonableness. From the results of the interests of the interpretation of clearly improper 

administrative behavior results in violation of the usual clean-up degree. But an administrative act is 



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unreasonable to what extent is considered obviously improper, how to distinguish between general 

improper and obviously improper, these are no specific refinement of the standard. Obviously improper 

as a legal concept of uncertainty due to the lack of specific theory and refinement of the provisions of 

the court in specific cases of trial and review of certain difficulties. Although obviously improper itself 

with a certain degree of ambiguity, but also should be specific quantitative concept of its scope, so as to 

make the judicial review of the objective criteria to maintain its fairness. Therefore, the concept of 

clearly improper administrative action and specific refinement of the standard is conducive to 

regulating the administrative organs of the exercise of discretionary administrative action and the 

fairness of the court’s judicial review. 

 

2. The Need for Judicial Review of Manifestly Improper Administrative Action 

2.1 Administrative Rule of Law Needs 

In the dictionary, “administration” means management, and in the English dictionary, administration 

and management are even one word. In the usual sense, the term administration refers to the activities 

of a social group that organizes and manages a certain range of affairs for a specific purpose. 

According to this interpretation, administration exists in all social organizations, government, 

enterprises, institutions, mass organizations and so on. It can be seen that administration exists in all 

aspects of human life. In order to regulate the exercise of administrative power, it is necessary to 

impose certain constraints on it to ensure reasonable administration in order to realize the efficient 

management of the state and social affairs, maintain social peace and stability, and further promote 

administration in accordance with the law and the rule of law. However, with the continued expansion 

of modern administrative power, there is a risk of abuse of power, and in order to implement 

administration in accordance with the law and the rule of law, it is necessary to remain vigilant against 

the downward expansion of administrative power on the grounds of governance. In addition to the 

horizontal expansion of administrative power, resulting in its management of social affairs more 

detailed, wider coverage, and administrative power is not like the exercise of power that is strictly 

regulated, it will inevitably be abused, the administrative subject is very easy to make obviously 

improper administrative behavior. Therefore, in the process of safeguarding the exercise of 

administrative power, attention should also be paid to the supervision of administrative power. 

Administration in accordance with the law is an inevitable requirement for the construction of a 

rule-of-law state and a rule-of-law government. Administration in accordance with the law requires that 

administrative subjects shall not violate the provisions of laws, administrative rules and regulations in 

carrying out administrative activities. If the administrative organ or other administrative subject 

violates the relevant laws and regulations, exceeds the authority, made unreasonable, inappropriate 

administrative decisions need to bear the corresponding legal responsibility. Therefore, to clarify the 

meaning of administrative behavior is obviously improper, for judicial review and the rule of law has 

important significance. 



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2.2 Need for Administrative Discretionary Control 

Administrative discretion is also a fuzzy concept, similar to the criminal law in the fitness of crime and 

punishment. Academics mostly define it in terms of legislative power, judicial power and 

administrative power. For example, Professor Jiang Ming’an believes that in line with the spirit of 

legislation, legislative purposes, legislative principles, in order to achieve the administrative purposes, 

the administrative organs to choose, decide to make the behavior is administrative discretion. 

With the legislator’s substantive provisions of the substantive law of administrative discretion, the 

court can realize the administrative organs of their own choice of administrative action to achieve the 

supervision of the litigation, and to achieve the legislator’s purposes and requirements. Therefore, 

administrative discretion is viewed from the perspective of the legislature, the judiciary and the 

executive, which helps to understand its meaning. Therefore, how to realize the balance between the 

freedom of administrative discretion and judicial supervision is the focus. 

Administrative discretion has several characteristics as follows. First, the power of administrative 

discretion is clearly defined by law. Including the power by whom to exercise, discretionary standards, 

discretionary content, etc., violation, abuse of power need to bear the corresponding responsibility. 

Secondly, administrative discretion is made by a specific person within certain limits, although the laws 

and regulations have objectivity, but also less subjective. The choice and decision of administrative 

discretion is relatively free, must be made within reasonable and lawful limits. Third, the scope of 

discretion, there are different academic differences. One party claims that administrative discretion is 

limited to specific administrative action. And the other side advocates, administrative discretion and in 

all administrative behavior. Because of the expansive nature of administrative action, so the abstract 

administrative action field should also have the right amount of discretion in order to regulate the 

administrative power. Fourth, the certainty and predictability of discretionary decisions. Although 

administrative discretion has subjective initiative, it is also limited by norms. The choice of 

administrative behavior must strictly abide by the laws, regulations and other restrictions and in line 

with the legislative principles and the spirit of legislation. 

The famous administrative jurist, Bernard once said: “administration lies in discretion and control of 

discretion”. To a certain extent, it can be said that the vitality of administrative power lies in 

administrative discretion. And administrative discretion is under the clear provisions of the law, so 

administrative discretion has an umbrella. And because the choice of administrative power with a great 

deal of subjectivity and environmental uncertainty, so the administrative body is likely to violate the 

exercise of power, make a form of legal, but the substance of the administrative decision is 

unreasonable. The legislative purpose of administrative discretion itself is to make up for the 

limitations of the law, to supplement the defects and deficiencies of the legislation, and to give full play 

to the subjective initiative to realize the justice of individual cases. Based on the principle of 

interconnectedness of power and responsibility, in order to avoid abuse of administrative power, 

administrative discretion is also subject to restriction and regulation. The regulation of administrative 



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discretion in most cases focuses on legislative control as well as formalistic checks, that is to say, the 

legislature enacts strict legal norms at the time of legislation to control the exercise of administrative 

discretion. Another way is ex post facto relief, i.e., in the face of unjust and unreasonable 

administrative decisions to limit the unfairness caused by the exercise of administrative discretion by 

means of judicial review. However, the effect in reality is not satisfactory, and the attempt to realize the 

regulation of administrative discretion through legislation is usually constrained by many 

circumstances. For example, judicial review has its own limitations and judicial remedies have a certain 

degree of delay. Therefore, it can be learned that there are many difficulties in trying to realize the 

regulation of administrative discretion by means of traditional means. So far, the regulation of 

administrative discretion has shifted from procedural to substantive, from external constraints to 

internal regulation, which is the only way to minimize or even avoid the making of obviously improper 

administrative acts. 

2.3 The Need for Judicial Remedies 

Due to the administrative discretionary behavior itself does not have a specific and clear standards and 

made the subject with the subjective initiative, always inevitably produce infringement of the legitimate 

rights and interests of administrative counterparts. Therefore, the administrative remedy should not 

only include illegal administrative behavior, but also the form of legal but illegal administrative 

behavior included. The administrative remedies include but not limited to, administrative litigation, 

administrative reconsideration. Administrative litigation refers to when the legal rights and interests of 

citizens and legal persons suffered unjust and illegal infringement can seek judicial relief from the 

court. Therefore, administrative litigation assumes the function of final guarantee. 

An important legal principle of our country, power and responsibility are unified, therefore, the power 

must be regulated, and obviously improper administrative behavior should be regulated. Judicial 

remedies are characterized by both passive and active. Its passivity is reflected in the initiation of the 

procedure, that is, no lawsuit, the court may not take the initiative to intervene in the obviously 

improper administrative behavior of judicial review before the parties to the court litigation. Judicial 

review at the same time also has a positive and active aspects, that is, after the court accepts the 

administrative litigation case, the judicial organs can be appealed to the administrative behavior of the 

initiative to review, and actively safeguard the legitimate rights and interests of administrative 

counterparts, to maintain the value of legal fairness and justice. Judicial remedies can effectively 

regulate the administrative subject’s discretionary behavior, the period is more reasonable, can 

significantly reduce the occurrence of improper administrative behavior, and make the law more 

authoritative. 

 

 

 

 



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3. Inappropriateness of the Manifest Impropriety Standard in Judicial Review 

3.1 Inconsistent Standards for Determining Manifest Impropriety 

The Legal Affairs Commission of the National People’s Congress, as the formulation authority of the 

New Administrative Procedure Law, also organized scholars to publish the “Interpretation of the 

Administrative Procedure Law”, so this book has a high reference value, which can better help us to 

understand the legislator’s attitude towards the obviously improper. The legislator in the “interpretation 

of the administrative procedure law” on the evaluation of obviously improper is this: administrative 

punishment results in national celebration or excessive. This interpretation evaluates obvious 

impropriety from the sense of result. But the court can not agree with this view. Because the court’s 

trial is not only the result, there are other procedures such as trial, this explanation obviously can not 

meet the requirements of the court practice review. For the court, to judge whether an administrative 

act is improper, can not only look at the results, but also to judge the administrative organ to make the 

administrative act to give what purpose, as well as the means used is appropriate. In 2014, before the 

revision of the administrative procedure law, the academic community on the obviously improper 

research is very little, administrative organs and judicial organs on the obviously improper are not a 

unified interpretation of the standard, can only rely on their own experience in practice on its judgment. 

To this day, the academic community for the interpretation of obviously improper is still divided. 

3.2 Inadequate and Clearly Improper Reasoning in Adjudicative Documents 

In accordance with the provisions of the Administrative Procedure Law, in order to maintain the 

authority of the law, it is necessary to justify the reasons for the decision, with a clear basis and 

sufficient reasons to argue. The abstract concept of clearly improper more need to be sufficient grounds 

to argue, make the administrative litigation trial to achieve satisfactory results. The legislator set up 

obviously improper as the basis for review, its intention is to prevent the abuse of administrative power, 

safeguard the legitimate rights and interests of the administrative relative, but in practice it is not 

difficult to find, most of the court’s decision, the obviously improper reasoning is obviously not 

sufficient, which is unconvincing. 

For obvious insufficient reasoning, obviously the word can see the legislator for the respect of 

administrative power, only when the administrative power is obviously wrong after the fact by the 

judicial power to be corrected. Not only maintain the discretionary power of the administrative organs, 

but also can give the administrative relative reasonable relief. But in practice, the court for the 

“obvious” reasoning is usually only a direct quote from the article, only one sentence, not enough. 

For “improper” reasoning is insufficient. The specific form of its manifestation is that the violation of 

what is improper, as well as the reasons for the violation of what is, to what extent the violation is 

considered improper, these in the decision often did not set out. For example, the court in the decision 

to write: “the main evidence is insufficient, obviously improper”, the latter part of which seems to be 

followed in the lack of evidence after a result of the description, and no reasoning of the argumentation, 

was passed over. 



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4. Proposals for Improving Judicial Review of Manifestly Improper Administrative Acts 

4.1 Refinement of the Standard for Determining Manifest Impropriety 

So far, in practice, most judges and scholars have used the basic principles of administrative law as the 

standard for judging obvious improprieties. Although this approach has a certain theoretical basis, but 

this standard depends on individual value judgment, which may lead to different judges to treat the 

same case will come to different conclusions, is not conducive to the consistency and certainty of the 

law, it is difficult to give adequate reasoning in the judgment, resulting in judicial practice, the 

confusion of the application of the obviously improper. Appropriate reference can be made to the 

legislative principles, for example, the principle of equality, in the same case there are more than one 

relative who has committed an act of comparable degree of violation of the law, the administrative 

organ should impose a similar degree of punishment on all. Secondly, the principle of proportionality, 

which is an important principle in administrative discretion, to achieve a balance of the interests of all 

parties. In order to achieve certain administrative purposes, the administrative organ should obtain 

greater benefits at the least cost, and maintain a good balance between individual interests and public 

interests. 

4.2 Improving the Administrative Case Guidance System 

Although our country does not take jurisprudence as a formal source of law, as do common law 

countries, it is undeniable that jurisprudence has a great role to play in the application of legal norms by 

judges in adjudicating cases and in harmonizing adjudication standards. Simply put, it means that such 

rules of adjudication, which are recognized by the highest judicial body, can provide a basis of 

legitimacy that is highly persuasive to the judiciary, administrative agencies, and administrative 

counterparts. 

As mentioned earlier, there is also the problem of insufficient reasoning in cases of obvious 

impropriety. Improve the administrative case guidance system, this can also be improved. The role of 

the judgment is not just a simple record of the results of the case, which is more important is the basis 

of the decision and convincing reasoning process. The judge not only to persuade the parties to the 

litigation, but also to persuade themselves, therefore, the establishment of the administrative case 

guidance system, to standardize and improve the judicial review of clearly improper administrative 

action, has practical significance, can unify the judge to decide on the basis of the legal terminology to 

the maximum extent possible to offset the ambiguity of the legal terminology. In addition also help to 

improve the judgment on the reasoning part of the argumentation, more clearly see the judge free heart 

process, so as to form an invisible supervision of the judge, a better balance between the judicial organs, 

administrative organs and administrative relative interests of the three parties, to maintain the authority 

of the law, and to maintain social harmony. 

 

 

 



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5. Conclusion 

To start from the focus of the dispute of administrative behavior, according to the scope of obviously 

improper review of administrative behavior, filtering out irrelevant factors, from the legal principles of 

administrative law for consideration, after full argumentation to clarify the meaning of the scope of 

obviously improper. Especially in the adjudication documents to strengthen the argumentation and 

reasoning, for different audiences, so that the administrative organs, the administrative relative, as well 

as the public and other satisfaction, so that the law to show the proper feelings and reasoning, to 

achieve the unity of the legal effect and social effect. 

 

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https://doi.org/10.1093/oso/9780198867609.003.0020
https://doi.org/10.1007/s12689-011-0003-8
https://doi.org/10.2139/ssrn.3044092

