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Today we will talk about the last highlight of the new regulations - the standards and circumstances of "improper administrative behavior". This is a major breakthrough from scratch. Prior to this, the "Administrative Review Law" only stipulated that administrative reconsideration could be applied for "illegal" administrative actions. However, whether and how "unreasonable" administrative actions could be sued was not clear in law. This time the new regulations clearly include "improper administrative behavior" within the scope of review, which can be said to have filled an important legislative gap. Today, lawyer Ying Ting will discuss it with you.

What is "improper administrative behavior"?

"Improper" administrative behavior refers to the fact that although there is no obvious violation of the law when an administrative agency takes an administrative action, there are obvious problems with its rationality. Specifically, the new regulations enumerate three main situations: first, the administrative action is taken in a manner that clearly violates the purpose authorized by law, such as an administrative agency imposing excessive penalties on a small problem in order to complete a certain assessment indicator; second, the administrative action exceeds the necessary limit, such as imposing excessive penalties for minor violations that exceed a reasonable proportion; third, the administrative action is made in a manner and procedure that is obviously unreasonable, such as treating the parties rudely and refusing to listen to reasonable arguments. These situations all fall into the category of "inappropriate".

What is the difference between "inappropriate" and "illegal"?

Two concepts need to be distinguished here: "illegal" and "inappropriate". Illegal behavior means that the administrative behavior violates the clear provisions of the law, such as having no factual basis, exceeding legal authority, and seriously violating the procedures. Inappropriateness is within the scope permitted by law, but the result is obviously unreasonable. For example, the law stipulates that a certain illegal act can be fined from 1,000 yuan to 10,000 yuan. The administrative agency fined 10,000 yuan. This is legal from a legal perspective. However, if the illegal act of the party involved is very minor and there is a circumstance of surrender, a fine of 10,000 yuan is obviously too heavy, and this is "improper". In the past, improper administrative acts were not within the scope of administrative reconsideration. The parties concerned could only go to court to file administrative lawsuits, and the threshold for litigation was relatively high. Now the new regulations clarify that improper administrative behavior can also apply for administrative reconsideration, and the relief channels have been broadened.

The principle of proportionality - an important criterion for judging "improper"

When it comes to improper administrative behavior, we have to mention an important legal principle - the principle of proportionality. Simply put, the principle of proportionality means that the means adopted by an administrative agency must be proportional to the goals it seeks to achieve. You can't kill a chicken with a bull's-eye. For example, in order to improve the city appearance, the urban management department can punish vendors who occupy the road for business. However, if the vendor only slightly occupies the road for the first time and the impact is very small, the administrative agency will directly seize all business tools and impose high fines. This violates the principle of proportionality and is an improper administrative act. The party concerned can apply for administrative reconsideration on this basis and request the reconsideration agency to review whether the administrative agency's handling has exceeded the necessary "degree."

How to claim "improper" when applying for reconsideration?

There is an important prerequisite for advocating that administrative actions are "improper": there must be sufficient factual basis and reasoning. In the application for reconsideration, the applicant must specify in which aspects the administrative agency's handling violates the purpose of legal authorization, exceeds necessary limits, or is obviously unreasonable. The facts must be stated clearly and the reasons must be given clearly. When reviewing the case, the reconsideration agency will review whether the administrative agency's handling is supported by sufficient evidence and conforms to the principle of proportionality based on the specific circumstances of the case. If the administrative agency cannot explain why such severe treatment is required and the applicant has reasonable grounds, the review agency is likely to support the applicant's claim.

[Lawyer Yingting’s conclusion]

The inclusion of “improper administrative conduct” within the scope of administrative review is one of the most groundbreaking changes in the new regulations. It expands the scope of administrative reconsideration from "legality review" to "reasonableness review," meaning that the review agency can not only handle "illegal matters" but also "obviously unreasonable matters." This is of great significance for protecting the rights and interests of our enterprises and regulating the law enforcement behavior of administrative agencies. Thank you for paying attention to all ten episodes of Yingting Legal Interview. We hope that through these ten episodes, we can help you better understand the new "Regulations for the Implementation of the Administrative Reconsideration Law》Main changes, know how to defend your rights when encountering administrative disputes.